State ex rel. State Journal Co. v. McGrath, 91 Mo. 386

State ex rel. State Journal Co. v. McGrath

91 Mo. 386

Mo.

1886

Check Treatment

Ray, J.

This was a petition for mandamus, to-compel the defendants, as ex officio commissioners of public printing, to award to the plaintiff a certain contract for public printing, therein mentioned, having two-years to run from July 1, 1884. The petition was filed in the Cole circuit court, on July 3,1884, and afterwards,, on the same day, an alternative writ was issued by the judge of said court, returnable to the ensuing December term thereof; when the defendants filed a demurrer to the same, which, being heard and considered by the court, was sustained, and the bill dismissed, from which judgment the plaintiff has appealed to this court.

The material allegations of the alternative writ, are to the effect foil owing: That said commissioners, under section 6594, Revised Statutes, proceeded to advertise for “sealed proposals” for executing the state printing for the term of two years from and after July 1, 1884:. that the relator, relying upon the good faith of said advertisement, so made, did submit its proposals for the “second-class” printing, so advertised, at the price ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and sum of twenty-nine cents per thousand ems for composition, and twenty-four cents per token for all press work, which said proposal was accompanied by a satisfactory bond and security, as required by law ; that said commissioners thereupon proceeded to open аll such proposals by them received, when it appeared that only two proposals had been submitted for the printing of thе second class — -one by relatoi’, at the price and sum afore*392said, and the other by the Tribune Printing Company, at the price аnd sum of thirty-two cents per thousand ems for composition, and twenty-five cents per token for all press work ; and that relator was then found to be the lowest responsible bidder for all printing of said second class, as provided by law. Relator avers and charges that it was the duty of said commissioners, on careful examination and computation, under section 8595, Revised Statutes, to awаrd the contract for said printing to the relator, as such lowest responsible bidder therefor, which the commissioners then and therе refused to do, and still refuse so to do. Relator further says that it is advised, believes, and so charges, that said commissioners arbitrarily, аnd in violation of law, have awarded said contract for said printing to the said Tribune Printing Company, which was not the lowest responsible bidder therefor; that great injury will be done relator and the taxpayers of the state if said contract is not awarded to the lоwest bidder; that the relator is without other adequate remedy for the wrong so done, unless it be corrected by writ of mandamus; wherefore rеlator prays that said commissioners be required to vacate, cancel, and annul, the award of said contract for sаid printing to said Tribune Printing Company, and that they forthwith award the same to relator as duly bound by law.

It is insisted for relator, among other things, first, that the commissioners of public printing are mere min-' isterial officers, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍whose duties, under the statute, are fixed and plain, and that they have no discretion in the premises, and that mandamus will lie to compel the performance of duties thus imposed; second, that relator’s bid for the proposed printing, being the lowest responsible bid, in and of itself, by operation of law, vested absolutely in the relator thе contract for said printing, and gave it such interest and legal rights as are enforceable by writ of mandamus; and that the *393attempted award of said contract to the Tribune Printing Company was, and is, absolutely null and void. On the contrary, it is claimed for the respondents, that they are not mere ministerial officers without diecretion, and that mandamus will not lie to compel them to award the contrаct to relator; that the theory of statutes requiring the letting of such public contracts to the lowest bidder, is, that they are designed rather for the benefit and protection of the public than the bidder, and that such proposals confer upon the bidder no аbsolute right to enforce by mandamus the letting of such public contracts after they have already been awarded to anоther.

The decided weight of authority on these questions, to which we have been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cited, and to which we have had access, is to the effect following:

High’s Extraordinary Legal Remedies, section 92, treating of the duties of public officers entrusted with the letting of cоntracts for public work, uses this language : “ The better doctrine, however, as to all such cases of this nature, and one which has the support of an almost uniform current of authority, is, that the duties of officers, entrusted with the letting of contracts for works of public improvements to the lowest bidder, a,re not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of the courts toy mandamus.”

In the case of State ex rel. Phelan v. Board of Education, 24 Wis. 683, the ruling of the court is to the effect that when the law requires a public work to be let to the lowest bidder, such bidder, after his bid has been rejected and the contract аwarded to another, has no absolute right to a mandamus to compel the execution of a contract with him; and, in this casе, the court refuses to complicate the matter by directing the court below to issue the writ.

In the case of Commonwealth ex rel. Snyder v. *394Mitchell, 82 Pa. St. 343, treating of a statute and prоposals on a kindred subject, the ruling of tlie court is to the following effect: “The word ‘responsible,’ in the sixth section of the act оf May 23, 1874, has a broader, meaning than is involved in the pecuniary ability to-make a good contract by security for its faithful performаnce, and when the term is applied to contracts requiring for their execution not only pecuniary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ability, but also judgment and skill, the statute imposes not merely a ministerial duty upon the city authorities, but also duties and powers which are deliberate and discretionary, and, therefore, when these authorities have exercised a discretion, mandamus will not lie to compel them to modify thеir decision, even though their action was erroneous, in the absence of clear proof of fraud, or bad faith.

Numerous аuthorities elsewhere are to the same effect, among them the following: The People v. The Contracting Board, 27 N. Y. 378; The People ex rel. v. Croton Ac. Board, 49 Barb. 259; Free Press Ass’n v Nichols, 45 Vt. 7; The People v. Contracting Board, 33 N. Y. 382. Tested by these authorities, and the rules therein statеd, it must be held, and we think, rightfully, that the circuit court committed no error ia its ruling, and judgment upon the demurrer.

Other questions and authorities have been suggested and cited in briefs of counsel, but as the above disposes, of the case ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon its merits, they need not be considered or discussed. The judgment of the circuit court is therefore affirmed,

in which all concur.