*1 (No. 12, 1938.) 6519. March PARSONS, State on the of HARRY STATE Relation General, TAYLOR, Attorney Re- Auditor, W. and J. spondent, COMPANY, v. a Cor- BUNTING TRACTOR poration, McKELYEY, STEMMER, H. G. E. J. COMPANY, AETNA CASUALTY AND SURETY a INSUR- Corporation. PACIFIC CASUALTY UNITED COMPANY, Corporation, CONTINENTAL ANCE Corporation, and COLUM- COMPANY, a CASUALTY Appel- COMPANY, Corporation, BIA CASUALTY lants. (2d) Pac.

[77 464.] *2 Martin, Galloway, T. L. Karl W. Appel- Paine J. for McKelvey E. lants G. and J. H. Stemmer. Haga, Appellant for

Richards & Tractor Com- pany. Smith, Appellant

E. B. for Casualty Aetna Surety Company. Martin, Apjiellant

J. F. United Casualty Pacific Insur- Company, Corporation. ance a

Hawley Worthwine, for Appellants & Casualty Continental Company, Corporation, Company, Casualty Columbia Corporation. Crowley, Law- L. Attorney General, Ariel Taylor, J. W. Attorneys Gen- Quinn Elliott, Assistant E. B. G. rence Respondent. eral,

BUDGE, state, J. The on relation of its auditor and attor- ney general, compel repayment $13,401.86, seeks of al- legedly expended illegally acquiring machin- certain road ery by appellants, public commissioner of works and director highway appellant Bunting Company. from Tractor appellants Other appellant are sureties for state officials. complaint up action, The sets three involv- causes each ing separate dates, transaction, excepting identical as to alleged amounts, equipment and involved. it is Substantially, provi- that without law in violation of the and 15, chap. sions title I. total C. absence any compliance therewith, Bunting Company Tractor Department sold delivered to the of Public Works cer- brief, machinery upon tain road In three leases. written signed leases, by appellant Acting Stemmer, J. H. Commis- Works, provided leasing equipment sioner of Public for Bunting Company Tractor at a named sum” period months, “total rental payable monthly proportionate payments.

alleges contracts, at entering the time of into the written Stemmer, Bunting MeKclvey and Tractor Com- pany, provi- purpose evading nullifying chap. 15, I. into sions made and entered understandings by agreed verbal which was completion payments specified in leases, that together computed on monthly balances, with interest property upon pay- would become the of the state payments. ment of certain small final sums It is then alleged Company against executed claims pay- state for the instalments for the final sums or ments, approved claims were by appellants Stemmer McKelvey, auditor, filed certified him to the allowed, Examiners, the'latter Board of that such *4 paid by alleged state warrants. It is were further claims contemporaneous agreements verbal written leases said integral parts equip- of conditional sales said constituted provided ment, required or made that no bids were public chap. 15, any nor notice or ad- was required given character or made as vertisement name therein, nor contract of sale awarded was required by otherwise as the state or purchase under I. because such reasons the and that wholly has been and at all times aforesaid was void and unlawful.

Appellants separate effect that the demurrers to the filed cause to state sufficient constitute a failed facts to against them, of action were overruled. which demurrers by appellants, Answers filed leases were the effect that required made; were entered into and that no bids were arrangements procuring property that all described Pur- leases made Governor and State in the were the then chasing Agent, them; each that were said documents executed under the of said Governor and direction Purchasing pay- Agent; was that the final State it denied purchase price. ments were balances of For further alleged equipment pro- answer and defense was was immediately actually cured to be used and was so used highway Owyhee county pro- public a construction of transportation means of and communication for an iso- vide important state, provide but section of the and to lated em- labor, necessity ployment for idle and and that the destitute providing transportation, communication and em- requiring ployment public exigency constituted immediate delivery equipment, and the then Governor State Purchasing Agent found, prop- so determined and and said procured pursuant public and in erty was virtue of such finding, exigency, determination and not otherwise. It affirmatively alleged subsequent to the execu- was delivery equipment, the leases and and as tion of Company separate offered to transaction equipment to the state for the small final transfer sell and sums, to; accepted referred that said offer was heretofore Purchasing Agent, terms of said offer State McKelvey. Finally Stemmer unknown were monopoly, alleged was a no other it is intended use comparable or suitable for its was to it property pur- property available for that no similar state; *5 comparable for a price, chase prop- for said and reasons the erty subject competitive was not a bidding. of separate answers,

Demurrers to the ground they defense, did not state facts a sufficient to constitute of cause appellants. were state sustained as to all Thereafter judgment moved for in its conformity prayer with the of complaint upon ground: having

“General been demurrer sustained each of answers and amended answers of in the several defendants ’’ case, this there remains no issue fact to of be tried.

Judgment part: reciting was entered in THEREFORE, upon plaintiff, “NOW motion allegations court finds of the several causes each of action set complaint, forth admissions of- by the several answers are filed herein the several defendants judgment sufficient in law fact warrant in favor of and plaintiff against severally prayed defendants complaint, plaintiff’s justi- in the and finds that there no is pleadings in cause; ciable issues raised this and find- ings being expressly fact and conclusions of law waived parties,” all ordering, adjudging decreeing recover that the state severally from the jointly the sums

claimed. assignments questions following

The of error raise the main necessary to decision this case:

(1) A., permissive Whether sec. I. C. man- 65-1507, is advertising for datory with reference to bids? 65-1507, A.,

(2) C. permissive, If see. I. is the com- does against appellants, of action plaint cause them? A.,

(3) 65-1507, permissive, I. C. is If sec. the com- action, does states a cause the answer plaint state facts ? a defense to constitute sufficient Respondent’s theory evident is that the entire action of chapter 15, court was correct because lower sec. I. particularly mandatorily acquired be requires involved advertising pre- bids manner having concededly not chapter 15, supra, and this scribed equipment no procurement the manner interposed. be is, legal could question exists, defense no not is true, the statute Appellants urge contrary —-that 65-1507, I. C. statute, mandatory, permissive. but *6 A., provides: all purchase of making in

“The state departments and necessary for supplies equipment the advertise, 65-1502 may institutions enumerated section name provided, as contracts in the and award hereinafter supplies Idaho to responsible lowest bidder “may” urged respondent although the word It is foregoing statute, from the context and is used legislative apparent chapter, intention from the whole expressed that advertisement for bids was manda- intent was tory. only interpretation the court’s

In of a statute concern legislative give as effect intent ascertain and irrespective wisdom, expressed, practicability, policy, (State expediency possible Lukens, Ida. results. 48 v. 527; 595, 566; 357, Jutila, 34 Ida. 202 Pac. 283 Pac. v. State 12, Co., 21 120 v. Pass Placer Min. Ida. Pac. Howard Grimes 619, 170, Gallet, 51 Ida. 1913C, 284; Ann. Cas. v. Diefendorf (2d) 307; re 53 Ida. In Co., 10 Pac. Garrett etc. Transfer 519, (2d) 739; Bossner, 18 Ida. Pac. 200, 23 Pac. 110 In re 945.) C. J. 59 502; statute, construing given words will be

Ordinarily (Cook ordinarily meaning. their common and understood v. 264, 1088, 200; 220 35 L. Massey, 38 Ida. Pac. A. R. Adams 483, 280; Bossner, 18 110 Pac. Lansdon, supra; Ida. re In v. Omaechevviaria, 797, 152 280, 27 Ida. Pac. 246 Affd. v. State Sup. 343, 62 763; Cosgrove, 38 Ct. L. ed. 323, State v. U. S. 278, 393.) 210 Pac. judi 36 Ida. This court has heretofore “may” appearing interpreted legislation cially word expressing having meaning right to exercise as discretion, permissive right, imperative than rather —a (Barton Schmershall, mandatory meaning of “must.” v. 22 Stevens, 670, Ida. 127 562, 122 385; Pac. Lee Pac. 21 Ida. v. 624 680; Dept. Small Claims v. County Board Commrs. County, 228,

Ada 44 1079, Ida. 256 Pac. 102; 59 p. C. J., 635.) section, The foregoing originated part chapter 12'8, as a Session 1919. The Laws legislative original 147, record discloses that the Bill Senate contained the word “may” “shall” where the word now appears, 28, 1919, but February that the Senate, as shown its journal, pages 360, 408, 353, the court takes judicial (In notice Co., Peavy re supra; Garrett etc. Transfer 143, 26 McCombs, 965; v. Ida. 140 Pac. Segregation In re 58, 222, 138), School 34 Ida. changed Dist. Pac. No. “may” word “shall” by amendment, passed the bill amended. Journal, 448, as The House page at shows that on 7,1919, 147, March amended, passed by Senate Bill 537, Bakes, In House. United Co. v. Ida. Ins. Pacific (2d) Pac. this court the rule that reiterated where presumption amendment an is made it carries it the legislature intended the thus statute amended have meaning (In different accorded it. Segre than theretofore re gation supra; School *7 Moody Highway Dist. No. v. State of Dept., (2d) 1097, 48 21, 1108; 35; 56 Ida. Pac. 59 note, C. J. 4, 1051, 276, Bashaw, 5; R. n. n. 25 L. sec. United v. C. States 116, Weitzel, 201 255 749, 754; Cal. Pac. People 50 Fed. v. 370, 792, 811; Keitel, 211 U. S. A. L. R. v. 52 United States 230; 123, Rieger Harrington, L. ed. 102 Or. Sup. 29 Ct. 53 v. 576.) Applying presumption foregoing 603, 203 Pac. consideration, A., 65-1507, under sec. I. C. the statute meaning pre that can be only logical difference of intended “may” express word was intended to is that the sumed “shall,” being gram either than word meaning different matically change words, correct, and that the of or the amend change mandatory from the clearly indicated ment, (Moore Waters, Education, Supt. County permissive. v. of Ready 326, 92; 146 E. & v. S. Goodchild Partners 148 C.S. 38; 378, Atl. Edu 124 v. Board Co., 100 Conn. State Tool of Village District Franklin Worthington School cation 865; Dillingham N. 438, Mayor 138 E. v. 105 Ohio St. Co., 381, 549, 56 E. 117 S. S. Am. St. 75 C. Spartanburg, etc. J., p. 1079, S., 412; N. 8 L. 829, R. Ann. Cas. 1082.) numerous p. sec. at The use of word “shall” section, subsequent in the next times and without deviation A., passed time, sec. which 65-1508, I. C. at the same section manner, ad sets forth method of completely the means and etc., vertising bids, opening bids, in connection for taken “may” with the fact that “shall” was amended to read legis preceding section, indication meaning recognized be lature and intended a different should stat “may” An examination of accorded “shall.” subjected utes the an passage the manner of their legislative intent nounced rules the determination making pur to the inevitable conclusion leads mandatory. permissive chases bids is and not appellants MeKelvey, It is the contention of Stemmer complaint interposed their sureties that the to the demurrers them should have sustained none of them because repayment money liable for under sec. could be held 65-1514, only therein party I. C. the reason that the being Bunting Company, liable identified as company advances the state. received the made to, A., provides: referred The statute made “All contracts or violation of money is shall whenever sum of 65-1507 be void and part of of Idaho on the in consideration advanced agreement, or it shall re- contract be forthwith such repay delay to when paid in case of same ; and refusal proper by the officers of state of under Idaho, demanded agreement contract or shall have been such whose refusing delaying, into, every person so made or entered surety sureties, prose- together shall be forthwith his recovery money sum so ad- for the lawat cuted ’’ vanced. allegations of the com- theory, under the respondent’s It is against appellants McKel- recovery may be had plaint, as from the sureties, as well Stemmer, and their *8 vey, provisions of sec. Company, under the Tractor complaint that allegation There is no A., supra. I. C. received, directly in- or either MeKelvey or Stemmer either by state con- part of advanced any the sums directly, 626

sideration they of the allegedly contracts, void not received fraud, un- benefits of or No kind nature. fairness, partiality or favoritism is alleged, simply that purpose of evading nullifying chap- ter 65, 15, Stemmer, McKelvey Bunting Company Tractor in a entered into contracts contrary manner to law with the result that the same were Respondent’s void. procure- simply contention ment of the road should have state upon bids, having procured, and not been so void, entitling were recover back the sums from appellants severally. advanced all jointly and specifically alleges that the Company advances, namely: received the “has received public moneys and has of the State Idaho without against warrant in law and the statutes afore- said contracts, ($13,401.86), void said the sum of now and property at all times the State of Idaho justly due to the State Idaho.” provides money

The statute advanced on a void contract must be “repaid,” literally “paid back.” — Dictionary Webster’s New International “re” as defines follows: prefix denoting:

“re —. a Back, esp. an original back to position; backwards; chiefly former stat'e' or de- words — recline, retrace, recede, rived Latin compounds; as in from refuge, recall.” “Repay” is defined Dictionary, Black’s Law third edi- tion, as follows: ‘‘ ’’ back; Repay. pay refund; To restore; (Walker return. (Tex. Wilmore, App.) 655; v. 212 W. Com. S. Harlan Coal Mining Co., King Ky. Land v. Harlan & Co. 390.) Dabney, 19 654; W. Grant v. Kan. S. negatives theory persons,,or the sure- The statute making participating in the of void persons, contracts ties anything further, agreements, without are liable for the re- made, they payment the advances which advances have not bringing “in provides The statute for the of suit received. (any money sum delay the same repay of refusal case *9 advanced, Neither state) demanded.” part on the of the when paid McKelvey Stemmer or were or received alleged con- sum void money by of advanced the state on the impossible for tracts thus or it be would “re- to comply requirements either of the statute with the return, of pay,”- pay said sum back, refund, or restore — alleged money of the by the consideration advanced state in “re- agreements. “repaid” and void or contracts The words persons liable person pay” identify or alone the serve recovery by state 65-1514, A., the under sec. for a be legislative appears to money the intent advanced. The language provid- of the statute discoverable from the ing repayment proper that be the demand for shall made been have authority officer contract shall under whose the appears proper made or entered into. officer It that such whose obliged the is the under state to make officer the demand made, alleged authority entered into or void contract was acting in this commissioner of instance the commissioner or public words, provided been it is works. In other that has authority a con- duty of the state under whose void official repayment of tract has been made or entered into to demand by the state such contract. money advanced on sums logical legislature It is neither reasonable nor that the intended or officer, under whose direction into, agreement or entered make contract was made should or repayment to state of sums of himself for demand illegally received were money which he had not and which agreement en- void contract or made or paid because authority. Whether or hot the into under his con- tered controlling not and is required to furnish bond is tractor is were state officials indication sureties not an “surety by the use of the words or sureties.” intended may prosecuted forthwith who be for the surety sureties money clearly designated the sum of advanced are recovery of refusing person sureties of surety as the the statute money delaying advanced when repay sums de- made, if, course, be mand there sureties. has recovery of action as set out seeks The cause McKelvey St-emmer, their sureties against appellants is, reason of I. of see. C. recovery sought against is 'them fact reason they violated or sec. 65-1507 and assisted violation of chapter 15, I. reference the manner of procurement equipment. The statute under which re- covery sought does not make such violation basis *10 recovery, provided but rather recovery the basis for in sec. 65-1514, I. C. A., is to of the repay demand refiosal proper officer money the sums of advanced in consideration of the void agreement. contract or No urged statute has been authorizing against as recovery appellants Stemmer and Mc- Kelvey and sureties, their 65-1514, other A., than sec. and we creating are to unable construe the statute cited a liability repayment money for the advanced as against them. 65-1514, A., purport Since I. sec. C. not does any to make civilly person violation, excepting liable its person a has money by who received the sums of advanced state in agreements, consideration of the void contracts or complaint against is state insufficient a cause of action McKelvey, Stemmer or their sureties. is

It further complaint contended that the fails to allege cause of'action it fails since that purchas- the state agent ing not alleged “did authorize the sales,” conditional argument alleged being effect if that conditional sales were made under authority the direction or of the state purchasing agent, they by were made him and are thus valid. complaint, effect, alleges by the matter contended for appellants. alleged equipment It was that the was sold with- authority of provisions out law and violation of the 65, A., chapter any title I. and in C. the total absence of therewith; that compliance the leases were entered into on by part Stemmer, Acting of the state J. H. Commissioner Works; appellants McKelvey of Public and Stemmer and entered into the verbal made and that no con- required of sale by tract was awarded as nor A., I. otherwise than C. is set forth complaint. words, complaint allegations In other contained in effect amounting appellant to that which contends should have been made, that is, that the conditional were not sales made or agent. purchasing authority the state under the direction authority without alleged sold that the was It was the contracts alleged that it was specifically, of law. More McKelvey, con- appellants Stemmer were entered into A., 65,1. C. chapter trary any all compliance statute any in the total absence al- specifically chapter. is thus It within said to be found into the contracts. McKelvey entered leged Stemmer may be, providing that contracts may as there Such the state authority of into under the direction be entered 65,1. C. chapter 15, title purchasing is to be found in alleges not complaint was entirety chapter in its any part. Appellants’ complied with in manner or complaint untenable. The regard thus position this is Bunting Tractor Com- against of action states a cause pany. to state cause urged fails

It is alleged not of action because required made McKelvey, Stemmer demand as

agent, or make a refusal to 65-1514,1. that there was nor purposes a demand demand. To all intents and *11 Company, upon Bunting transmitted to made the Tractor into the by proper who shall have made entered the officer alleged complaint: agreement. contract or It is the action, and behalf of institution of this on “Prior to the Idaho, Attorney notified the relator General this the State J. H. writ- McKelvey G. E. and Stemmer defendants said illegality return ing of of said contracts and demanded the moneys all received the defendant Idaho of to the State of Company which said thereunder, Tractor demand Bunting McKelvey H. Stemmer thereafter E. and J. the defendants G. Bunting to the said Tractor without demand transmitted Company.....” re- on name action instituted

This was of I. auditor, its who lation of duty imposed upon him: has the is authorized to and 65-901, moneys of all superintend the collection “To direct name . . . . in its institute suits State .... due the possessed become means have against persons any who public money or property pay fail over the same. We respect. are unable to find error in this Appellants’ assignment part second is in of error respondent’s court erred sustaining sep- demurrer to the arate amended Com- Bunting answer of defendant Tractor pany. effect, In respondent appear the brief of would by advertising concede that procurement, equipment if the mandatory, for bids is not is heretofore which conclusion reached, Bunting Company stated answer Tractor unnecessary facts sufficient to constitute defense. It is allegations consider all of the contained in the answer. In agree- brief alleged the answer in effect that the contracts or order, authority ments were made under direction then Purchasing Governor Agent. and State Likewise alleged it was procured for imme- required by public diate use in- exigencies, doubtless to, allegations appear tended and it do, bring would that such transaction within the terms providing: “ .... delivery when Likewise immediate of articles or performance required by public of service exigencies, required articles may procured be by open service so purchase place or contract at the in the manner in bought usually such articles are sold or such services engaged individuals, between but under direction of the ’’ purchasing agent. may

Inasmuch as the cause be tried the issues found by the amended answer of Company we expressing opinion refrain from reference to answer other than that the demurrer thereto have overruled. should

It follows that the cause is reversed and in- remanded with structions to trial court to sustain the demurrers of the appellants McKelvey, Stemmer and their sureties to the com- *12 plaint, respondent the demurrer of and to overrule to the Bunting Company, amended answer of the Tractor AILSHIE, The action the prose relators is J. on the under cuted behalf of of sec. 65- ^tate,

631 made contracts or 1514, Avhichdeclares that “all complaint be void.” in of sec. 65-1507 shall violation authority of prosecuted under alleges that the action is ob- defendants part of the failure on sec. for a Now, 65-1507. of sec. comply with the serve not directory and or merely permissive 65-1507 if sec. is stated action is course, mandatory, no cause then, manda- Whether herein. against anyone by the of action no cause me that it clear to tory permissive, seems reason Stemmer, McKelvey either against stated is either contended, that alleged, it nor it nowhere is is made payment from them received or benefited purchase of the lease or state for or on account of hand, if question. On other machinery con- mandatory, or, when alone, is standing mandatory, act, is Aviththe rest in connection strued that a cause of but reasonable doubt be no then there can Company as against is stated action property described. of the vendor having standing alone and 65-1507, if considered as See. the circumstances set incorporated the act under only, Budge, permissive opinion Mr. Justice in the forth op- procedure mentioned that section leave the would however, does not purchasing agent. Here, tional with the pass upon see. safely that we can consider seem me alone, very persuasive reason standing if 65-1507 as comprises sec- chapter 15 which sixteen part of it is a purchasing prescribing agent, the duties of tions obligations liabil- purchases making manner of dealing ities those with the original chapter 128 of the

in relation thereto. The act was 6 of that was the as see. Laws. Section act same 1919 Sess. chapter present See. was imme- of the code. 1507 of corresponds exactly diately by see. which followed present statute. 1508 of the see. says turning 65-1507, we that it see. find

Now, making purchasing agent .... purchase ad- may “state provided, award contracts in vertise, as hereinafter provision law, state,” only etc. The name *13 632 expression

which provided” possibly the “as hereinafter can refer, goes immediately following (1508) is the section requirement into detail with com- reference that the to the superintendents departments missioners make and “shall” itemized supplies statements of and that notice “shall” needed given be newspapers days; one or more at ten and for least that bids shall opened specified be for and time called at a place; and and contracts shall be to the awarded responsible lowest “which provides, bidder. It also notice shall fur- supplies also that detailed to be statements nished on file at officeof the state [are] subject inspection, and specify and shall also that at a time, certain to be therein mentioned, proposals said will be opened, and contracts responsible awarded lowest ’’ bidder. me,

It seems to an after and extended examination consideration provisions, expression these several provided,” “as hereinafter contained in sec. in was subsequent to refer tended to the embody and and to point to provisions thereof the specific as direc detail and procedure calling tions as to be followed and bids awarding contracts; although “may” and the word was used in the first sentence, throughout word “shall” is used act, remainder of if and it was not intended to man be datory, it would render 1514 wholly sees. mean ingless words, In and ineffectual. other to hold that mandatory, 65-1507 of sees. are with ref awarding contracts, erence to the advertisement bids giving meaning and effect to secs. 1510 results (1507 written; whereas, to hold that those sections merely permissive, 1508) holding are amounts to the two (1510 1514) whatever, latter as of no sections effect place legislature position having adopted would when, sections, fact, two they these in truth and knew and they intended at the time that would have no effect whatever. reasons, I For these am constrained to hold that sec. 65-1507 mandatory intended to be and is be read and construed. with pari materia sec. 1508. that, for the fore- My matter is the whole conclusion should court be going reasons, judgment of district remanded, directions be and the cause should reversed McKelvey and demurrers of to sustain the trial court to overrule complaint, and Stemmer and their sureties to Co.; and to demurrer of defendant to the amended plaintiff also overrule the demurrer *14 It Company. is or- separate Bunting Tractor answer of the accordingly. dered No awarded. costs J., Givens, Stevens, J., J., D. concur in the Holden, opinion of Justice Ailshie.

(No. 1938.) 6495. March ENGLAND, Respondent, FAIRVIEW v. SCHOOL LULU POWER DISTRICT No. 16 OF COUNTY and STATE FUND, Appellants. INSURANCE (2d) Pac.

[77 655.]