Johnson v. CRADDOCKJohnson v. CRADDOCK
- Reporters:
- , ,
- Before:
- Warner
This is an action for a writ of mandamus. It is brought by petitioner Johnson to compel the Harney County Court to sell certain tax-foreclosed property to him. He claims as his right to such relief that the county contracted to sell the property to others, notwithstanding his larger bid for the same.
Defendants and intervenors successfully demurred to petitioner’s amended alternative writ. Upon Johnson’s refusal to plead further, the trial court sustained the demurrer and disallowed the writ, whereupon he appealed.
The demurrer challenged the sufficiency of the writ. It projects as the cardinal question for our consideration whether the county court when rejecting the Johnson bids and accepting bids of others in lesser money amounts was exercising discretionary powers or acting ministerially.
Harney county had previously acquired title to 13 tracts of land through tax foreclosure sales. It later duly offered these parcels for sale at public auction by the sheriff under
The notice (without headline or signature) read:
“Notice is hereby given that Harney County will sell to the highest bidder, thirteen (13) tracts of tax foreclosed land situated in Harney County, Oregon. Offers must be by sealed bid which will be opened by the County Court at 10 A.M., March 10, 1959 in the court room of said Harney County Court House, Burns, Oregon.
“The legal descriptions of the tracts to be sold, bid forms and information of terms of sale may be secured at the office of the County Judge at any time between the hours of 8:30 AM. to 12 noon and 1 PM. to 5 P.M., Mondays through Friday inclusive.
“Any person may bid on any one or all of said tracts; bids will be received at any time after the publication of this notice, up to 10 A.M., March 10, 1959.
“It is ordered that this notice be published in the Burns Times Herald, a newspaper of general circulation in Harney County, Oregon, on February 5, February 12, and February 25, 1959.” (Emphasis supplied.)
Johnson submitted separate bids for each of the 13 parcels, together with checks representing one-third of the total amount bid for each tract. We are here concerned only with four of his bids; that is, those made for tracts 4, 5, 6 and 10.
Each of these four bids was identical in terms, except for land descriptions, land areas and the amount of the bid. We, therefore, set up only one bid (for tract 6) to disclose the general content of the four:
“BID ON HARNEY COUNTY TAX FORECLOSED LANDS
“I, Kenneth A. Johnson, hereby submit a bid of $2.11 per acre on the following described tax foreclosed lands; bids to be opened and read the 10th day of March 10AM, 1959, in the County Court Room, Harney County Court House, Burns, Oregon:
“ [here follows description of tax-foreclosed lands]
“Containing 1600 acres, more or less.
“Enclosed herewith bidder tenders $1,126.00, which amount is at least one-third of $3,376.00, Which is total amount of this bid. (Bid payment shall be in cash, Certified check or Cashiers check.) If bid is approved, balance to be paid either in cash, or if preferred, in not more than five (5) equal, annual payments, plus 6% interest on all deferred payments.
“It is understood that Harney County, Oregon, reserves the right to reject any or all bids and that any bid made for less than $2.00 per acre will not be considered. (All money deposited by unsuccessful bidders with tbeir respective bids shall be returned to them within thirty (30) days after the date of the opening of the bids.)
“It is also understood that Harney County reserves the right to right-of-way for county roads and highways.
“Dated this 9th day of March, 1959, at Burns, Oregon.
“NOTE: Bids for less than $2.00 per acre will not be considered.” (Emphasis supplied.)
Johnson bid $2.11 per acre for tracts 6 and 10 and $2.55 per acre for the land comprising tracts 4 and 5.
The bids of others for tracts 4, 5 and 6 were lower than those made by Johnson for the same parcels. The writ reveals that bids for those tracts on a per-acre basis were, respectively, $2.25, $2.20 and $2.06.. Petitioner’s bid for tract 10 was the only bid received for that parcel but was not accepted.
The problem presented to us by the record may be more simply stated in this form: Was the county court vested with a discretionary power to examine the various bids and in the exercise of that right, determine which bids were in the best interests of the county, notwithstanding their monetary disparities.
The defendants assert that such powers of discretion were imposed upon the county court by the statutes to which we will later make further reference ; and, therefore, mandamus will not lie to compel the relief which petitioner seeks.
The petitioner, to the contrary, relies upon a construction of
‘While mandamus will lie to compel inferior tribunals, public officers or administrative bodies to perform duties or functions imposed upon them by law, it will not undertake to control judicial discretion as to the manner in which such duties or functions should be performed.
Mandamus can be invoked, however, to correct an arbitrary abuse of discretion, in the absence of any other adequate remedy, even though it results in the court’s review of the officer’s exercise of discretionary power. Riesland v. Bailey, 146 Or 574, 578, 31 P2d 183, 92 ALR 1207; Ruonala v. Board of County Commissioners, 212 Or 309, 318, 319 P2d 898.
The right to sell any real property of the county accrues under
Under the provisions of
When we look to
The petitioner’s main argument turns on the construction of the phrase in
The interpretation accorded by the petitioner to the phrase “any such sale” rests solely upon a familiar rule of grammar that the word “such” refers to the last antecedent. The last antecedent in the exceptionally long sentence in which it appears is “private sale.” Hence, petitioner argues that it became the duty of the county court to sell the four tracts to him because his bid at the private sale was in “the largest amount.” To bolster ¡this argument, petitioner assumes that the words “largest amount bid” found in
We are not bound to accept and apply literally rules of grammatical construction. The doctrine of the last antecedent is not inflexible and is never applied when a further extension is dearly required by the intent and meaning of the context or when to apply a grammatical rule literally would lead to an absurd or unreasonable result, defeating the legislative purpose.
Fox v. Galloway,
174 Or 339, 346, 148 P2d 922;
Allen v. Multnomah County,
179 Or 548, 554, 173 P2d 475;
Swift & Co. and Armour & Co. v. Peterson,
192 Or 97, 109, 233 P2d 216;
Holman Transfer Co. v. Portland,
196 Or 551, 565, 249 P2d 175, 250 P2d 929;
State Highway Commission v. Rawson,
210 Or
The foregoing rule in its particular application to the instant matter is well and clearly stated as follows in 2 Sutherland, Statutory Construction (3d ed, Horack, 1943), 448-449:
“Beferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. Thus a proviso is construed to apply to the provision or clause immediately preceding it. But where the sense of the entire act requires that the qualifying words apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent. Thus it is apparent that the rule relating to relative or referential terms is of no great force and will be applied only when its application is consistent with the legislative intention.”
As a corollary to the rule last enunciated, we add: a slight indication of the legislative intent to extend the relative term to a more remote antecedent is sufficient. Myer v. Ada County, 50 Ida 39, 293 P 322, 323; Board of Trustees of F. and P. Fund v. Templeton, 184 Okla 281, 86 P2d 1000, 1004; Norberg v. Montgomery, 351 Mo 180, 173 SW2d 387, 390; 82 CJS, supra, at 672. Here, however, we find more than a slight indication of the legislative purpose.
We read the phrase “any such sale” as relating to an earlier sale made by the sheriff when directed by the county court under
When we construe the challenged phrase, as we have above, we are certain that it was the legislative plan by its reference to the “largest amount bid therefor at any such sale” to adopt such “largest amount bid,” if any, as the minimum bid for prospective buyers bidding at the private sale next following. In the statutes under review, we observe that the county is required to establish minimum prices for sales made by the sheriff under
We also note that the phrase “not less than the largest amount bid therefor at any such sale” is followed by the words “or, if no bid therefor
was
made [then], at such price as the county court deems reasonable.” (Emphasis supplied.) The use of “was” connoting something past can only refer to a
past
offering by the sheriff at a public sale. If we were to adopt petitioner’s construction; that is, as having reference to bids at a
future
private sale, then the phrase “or, if no bid therefor was made, etc.” is rendered meaning
“All sales made underORS 275.110 to 275.250 shall be to the highest and best bidder for cash or, in the discretion of the county court, for not less than 10 percent of the purchase price in cash, the remainder to be paid under written agreement with the purchaser in equal instalments over a term not exceeding 20 years from the date of sale, * * (Emphasis supplied.)
Thus, at either type of sale, a sheriff’s public sale pursuant to
Had it been the legislature’s purpose to authorize sales to be made to the highest cash bidder without more, it might have easily eliminated doubt by striking from
The phrase “highest and best bidder,” as employed in
The general rule has been stated by McQuillin as follows:
“The third class of provisions authorizes the letting of the contract to the ‘lowest and best’ bidder. Who is the ‘best’ bidder is not susceptible of definition, and in such cases the matter is left to the discretion of the officers awarding the contract. When the officers have exercised their discretion in the award of the contract, the presumption obtains that such action was regular and lawful, and such presumption can be overcome only by proof that the officers acted without justification or fraudulently.” 10 McQuillin, Municipal Corporations (3d ed), 356, § 29.73. See, also, 55 CJS 316, Mandamus § 166.
Public officers charged with the duty of selling public property to the “highest and best bidder” or making contracts with the “lowest and best bidder” are vested with a wide discretion in determining who is, in fact, “the best bidder.”
Donna Independent School District v. First State Bank
(Tex Civ App 1921), 227 SW 974, 975;
Wilmott v. State Purchasing Commission,
246 Ky 115, 54 SW2d 634, 86 ALR 127;
Hatcher v. Kentucky & West Virginia Power Co.,
280 Ky 583, 133 SW2d 910, 913;
Keith v. Johnson,
109 Ky 421, 59 SW 487, 488;
United States Wood Preserving Co. v. Sundmaker,
186 F 678, 682 (6th Cir 1911);
State v. Board of Public Service,
81 Ohio St 218, 90 NE 389, 391;
Brown v. City of Houston
(Tex Civ App 1898), 48 SW 760;
Fetters v. Mayor & Council of Wilmington,
31 Del Ch 364, 74 A2d 470, 471;
State v. Dreyer,
183 Mo App 463, 167 SW 1123, 1128;
State v. City of Lincoln,
68 Neb 597, 94 NW 719, 720;
State
Mr. Justice McBride, speaking for the court in Kiernan v. City of Portland, 61 Or 398, 122 P 764, concerning a sale of bonds at a price under par said at p 400:
“* * * The provision [of the city charter] directs that they shall be ‘advertised and sold to the highest responsible bidder,’ with the privilege reserved to the council to reject any and all bids that are not satisfactory. It seems more reasonable to infer from the language here employed that it was the intent of the lawmaking power to grant to the council the entire discretion to sell at the best advantage possible under the circumstances. * * *”
The phrase “lowest and best bidder” generally involves undertakings by state or municipal authorities looking to the purchase of materials or employment of services, whereas, the phrase “highest and best bidder” is found related to the less frequent activities of governmental entities seeking to sell some species of property, as in the case at bar.
The discretional determinations made with reference to what constitutes “the lowest and best bid” usually require a consideration of a greater number of elements in formulating a conclusion than would ordinarily be present when deliberating upon the acceptance or rejection of the “highest and best bid” for a sale of governmental property. In the latter class of bids, a usual, but not exclusive, question for consideration is the solvency of the bidder. See Donna Independent School District v. First State Bank, supra (227 SW at 975); Kentucky Utilities Co. v. Steenman, 283 Ky 317, 141 SW2d 265, 270.
Thus far we have confined ourselves to a consideration of the issues of law argued by the parties in their respective briefs. We also find additional reasons compelling a repudiation of the writ for want of sufficient statement.
The writ is the foundation for all subsequent proceedings in mandamus. It has the same function as a complaint in other ¡actions and, therefore, must state all the material facts ¡and show ¡a clear right to the relief demanded.
Crawley v. Munson,
131 Or 428, 435, 283 P 29;
United States of America v. Cohn, 201
Or 680, 684, 272 P2d 982. The writ must reveal, at least
prima facie,
a clear and existing right in the petitioner and ‘allege performance by the petitioner of all conditions precedent.
Paine v. Wells,
89 Or
We again call attention to the provisions of the published notice of sale informing prospective bidders that “information of terms of sale [might] be secured at the office of the County Judge * * But the writ in this matter does not allege what were, in fact, all or any part of the “terms of sale” to be found in the office of the county judge nor that the petitioner’s bid was a full and complete compliance therewith. As far as we can glean, the form of petitioner’s bids may incorporate only his own terms and conditions or only a part of the terms which were by the court made available to the inspection of the public in the office indicated by the notice. Moreover, the writ does not reveal that petitioner tendered the two-thirds of amount due on his bids, if accepted, nor is there an allegation to the effect that Johnson is willing, ready and able to make such further payments as might be required of him if successful in the mandamus action. 86 C JS 559, Tender § 3; 35 Am Jur, supra, at 94. See Southern Pacific Co. v. Siemens, 77 Or 62, 150 P 290.
The judgment of the circuit court in dismissing the writ is affirmed.
Notes