120 P. 485 | Mont. | 1912
delivered the opinion of the court.
On September 5, 1911, the board of county commissioners of • Lewis and Clark county caused to be published a notice, calling for bids for the care of the poor sick and infirm of the county for the period of two years from October 15, 1911. The notice concluded as follows: “The right to reject any and all bids is expressly reserved.” In answer to this notice, four bids were submitted, as follows: William Stuewe, $3 per capita per week; Jacob Doerr, $3.08 per capita per week; Bert Coty, $3.20 per capita per week; and William Holbrook, $3.25 per capita per week. On September 30, after the time for presenting bids had expired, the board, acting by its commissioners, Hindson and Dolliver (Commissioner Covington voting in the negative), awarded the contract to William Holbrook for two years at $3.25 per capita per week. William Stuewe, one of the únsuccessful bidders, instituted this proceeding in mandamus to compel the board to rescind and set aside the contract with Holbrook, and to award the contract to him. An alternative writ was issued, and upon the return the defendants demurred to the affidavit, and moved to quash the alternative writ. The demurrer and motion were sustained, and the proceedings dismissed. From the judgment of dismissal, the relator appealed.
There are but two questions before us for determination: (1) What is the status of the relator before the courts in this proceeding; and (2) to what extent may relief be granted?
The general rules of law governing the writ of mandamus are quite well settled, and counsel for appellant and the attorney general, appearing for the board, are in substantial agreement. Counsel for appellant in their brief epitomize the charges of fraud contained in the affidavit for the writ, as against Commissioners Hindson and Dolliver, as follows:
“That respondent board of county commissioners, acting by and through a majority of the members thereof,- to-wit, J. J. Hindson and William M. Dolliver, and overriding the vote of C. C. Covington, the other member of said board, against the
The demurrer admits the facts pleaded to be true, and for the purposes of this appeal they will be treated as true.
While mandamus will not lie to control the, discretion of the board, these allegations disclose that the board has never exercised
1. If this relator showed by his affidavit that he is merely an
In Commonwealth ex rel. Snyder & Co. v. Mitchell, 82 Pa. 343, a case similar in the facts to the one before us is presented, except that in the Pennsylvania ease there were no charges of fraud. In answer to a notice by the city of Pittsburgh, calling for bids for certain public work, Snyder & Co., copartners, and Bush & Co., each submitted bids. The bid of Snyder & Co. was lower than the other, but the contract was awarded to Bush & Co. Snyder & Co. then brought proceedings in mandamus to compel the city authorities to let the-contract to them, upon the ground that they were the lowest responsible bidders. In denying the relief sought, the court said: “It is a well-established rule that he who sues for the writ of mandamus must have some well-defined right to enforce, which is specific, complete, and legal, and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large. (Heffner v. Commonwealth, 4 Casey, 108.) But Snyder & Co. had no such right as above stated. By their bid, they proposed to contract for certain work; that bid was not accepted. It was a mere proposal that bound neither party, and as it never was consummated by a contract the city acquired no right against the relators, nor they against the city. Snyder & Co. are wanting in a specific remedy only because they have failed to establish a legal right. The injury, if any, resulting from the rejection of their bid fell upon the public, and not upon them personally.”
The provision of law for letting contracts of this character to
But this relator goes further, and alleges that he is a resident taxpayer of Lewis and Clark county, and sets forth the facts which show that if the contract with Holbrook is carried out the taxpayers of the county will suffer financial loss. Under such
We agree with counsel for appellant that under the showing made here this board has never acted upon the bids which were submitted to it, since its purported action was entirely vitiated by the fraud which is charged and admittedin other words, the board is now in precisely the same position it was in on September 30, when it met to consider the bids, and before it attempted to act.
We agree, further, with counsel that the duty devolves upon the board to act; that the duty is absolute; and that, having failed to act, mandamus lies to compel action. And this brings us to a consideration of this second question.
2. What shall the board be required to do? And in the answer' to this inquiry will also be found the answer to the other one: To what extent may relief be granted at the suit of a taxpayer?
Mandamus lies to compel the performance of an act which the law specifically enjoins as a duty resulting from an office. (Eev. Codes, sec. 7214.) Therefore the character of the duty measures the extent of the relief which can be afforded by mandamus. That the law imposes upon the board the duty to exercise its best judgment or honest discretion with respect to the bids submitted is conceded by counsel for both parties. But counsel for appellant insist that, having exercised an honest discretion, the duty to let the contract to the lowest responsible bidder is absolute. This implies, of course, that the board cannot reject all the bids offered. There is a serious question whether, by responding to a notice which reserved the right to reject all bids, this relator is
But has the board the authority to reject all bids? The general powers of the board of county commissioners are enumerated in section 2894 of the Revised Codes. After naming
The several provisions of the statute, relating to the care of county charges, are to be construed together. Section 2054 provides for the publication of the notice calling for bids. Section 2055, as amended by the Act of the Twelfth Legislative Assembly, approved February 23, 1911 (Laws of 1911, p. 78), provides that the board must award the contract to the lowest responsible bidder, provided, however, that if the county owns its own poor farm, properly equipped, the commissioners may employ a superintendent and care for the charges themselves. Section 2057 provides that the board may reject the bid of any person whom they deem unsuitable as a contractor. _
Assuming, then, that this board may now be required to reconvene and act upon the bids submitted, it must at such meeting exercise its best judgment or discretion and determine these facts at least: (a) The responsibility of the bidders; (b) the suitability of the bidder's; (e) which of the bidders possessing the qualifications of responsibility is the lowest; and (d) whether it is to the best interests of the county that a superintendent be employed, and the poor cared for by the direct method, in preference to caring for them by contract at any bid submitted. And the reason for these exactions is apparent. Responsibility is insisted upon that the contract, when awarded, may be carried
If the power to reject all bids, or any bid, under any circumstances, is lodged in the board, then it cannot be the absolute duty of the board to accept the lowest responsible bid. And if there was not an absolute duty imposed upon the board to award the contract to Stuewe in the first instance, because he was the lowest responsible bidder, mandamus will not lié to compel such action now.
Our conclusion is that the board cannot be coerced to let the contract to the lowest responsible bidder, upon the showing made in this instance, either at the suit of an unsuccessful bidder or a taxpayer. The office of the writ, if issued, would be to compel the board to act; that is, to exercise its discretion as the law
The relator assumes that the proceedings of the board up to September 30 were in conformity with the law, and thus far we have treated the questions raised from that standpoint; but, in our judgment, there is an additional reason for refusing relator the specific relief which he asks.
Section 2054, Revised Codes, as amended by the Laws of 1909, page 34, commands the board every September to advertise for
In advertising for bids for two years, and in assuming to let a contract to Holbrook for two years, the board exceeded its
The alternative writ of mandate issued in this instance merely commands the board to rescind the contract with Holbrook, or show cause why it does not do so, and had the board complied
This proceeding is essentially one ex relatione. While Stuewe is nominally the complaining party, the taxpayers of Lewis and Clark county constitute the real party in interest; and if it can be said that from the allegations contained in the affidavit and the alternative writ the taxpayers of the county are entitled to relief of any character, which can be granted in this proceeding,
That it is the duty of the board, either to employ a superintendent and take charge of the county poor directly, or to let a contract for the care of the county’s unfortunates, cannot be denied. The law imposes the duty upon the board, and any taxpayer may insist that the duty be performed. It appears from the affidavit that this duty has not been discharged, and that the county suffers as a result. These facts, of themselves, are sufficient to entitle the taxpayers to some relief, and a motion to quash ought not to have been sustained.
In our consideration of this matter, we have assumed that the county of Lewis and Clark owns a county poor farm, suitably equipped to care for its charges, since the affidavit presented here does not show the contrary; and the burden is upon the relator to show that the county is not so equipped, in order to show that the board has not the discretion to assume the direct control of its county charges.
In holding that the relator, Stuewe, is not entitled to the writ to compel the board to let the contract to him, the trial court was clearly correct; and this was the only question which that 'court was called upon to determine. Upon the doctrine of “the theory of the case,” we might justify the conclusion reached in the court below; but, since it appears that the public interests are concerned, and that injury is resulting to the taxpayers, this court would be remiss in its duty, if it denied the relief to which the public is shown to be entitled. And respondent Holbrook cannot complain, for in dealing with the board he is presumed tó know the -limit of the board’s authority. He contracted at'his peril. (Lebcher v. Board of Commissioners of Custer County, 9 Mont. 315, 23 Pac. 713.) The parties have stipulated that final judgment shall be entered upon the pleadings presented.
In the, course of this opinion, we have referred to the powers and duty of the board sufficiently that repetition is not necessary.
Reversed and remanded.
Though the relator alleges that he is a taxpayer, the purpose he seeks to accomplish in this pro- . ceeding is, not to compel the defendant board to rescind the contract let to Holbrook, and then proceed according to the requirements of the statute to let a contract for a period of one year, but to have himself substituted in place of Holbrook, on the sole ground that he was the lowest responsible bidder. In other words, he claims that he is entitled to have the board accept his bid according to its terms, and award him a contract for a period of two years. This being his position, the district court was clearly correct in denying him relief, both because his bid was rejected, and because it is manifest that the board has not the power to let such a contract, nor even to consider the bids as made. Neither was the district court, nor is this court, asked to grant any other relief; and, while I concede that, upon the admitted facts, the proceedings resulting in the letting of the contract to Holbrook were nugatory, on the ground of fraud, as well as on the ground that the board failed to pursue the statute, I think that in reviewing the judgment of the district court this court should accept the theory upon which the proceeding was presented to it, and approve or disapprove its action accordingly, leaving the relator to institute a proper proceeding as a taxpayer, if he chooses to do so, to have the Holbrook contract annulled. I do not think the relator should be compelled to accept relief which he did not demand from the district court, and which he does not now ask of this court, however reprehensible the conduct of the board may have been. I therefore do not agree with my associates in the disposition of this case.