52 Neb. 25 | Neb. | 1897
The relator herein filed in the district court of Lancaster county an application for a writ of mandamus to issue against John F. Cornell, the auditor of public accounts, John B. Meserve, state treasurer, and William F. Porter, secretary of state, who by law constitute the state printing board, to compel such board to award and cause to be let to the relator a contract to do certain of the public printing. An alternative writ was issued, in which appeared certain formal statements, to which we need devote no space or attention; also, that prior to December, 1896, and up to January 7, 1897, Eugene Moore was auditor of public accounts, Joseph S. Bartley was state treasurer, and Joel A. Piper secretary of state, and collectively the state printing board, and as such board advertised for proposals or bids for doing public printing, separating the work to be done, arranging one portion of it under what was designated in the advertisement “Class One,” and the other as “Class Three;” that in the advertisement the board assumed to reserve the right to award contracts for the work to be done under Class Three in or on as many separate contracts as it should deem best; that the relator made its proposal or bid for the performance of the work included under Class Three, and accompanied its bid with good and sufficient bond conditioned as required by law, and in the sum of $5,000; that the bids offered were duly considered by the printing board, and
“The said printing board, at the time provided by law, in the manner provided by law, considered the relator’s bid as aforesaid. At the time they so considered it the relator tendered to the said board its bond to the state in the sum of not less than twice the amount of the contract price of the contract for the work so bid for, which he claims should be awarded to him, and with more than two good and sufficient sureties approved by said board, conditioned for the faithful performance of said contract, which bond was according to law in all respects and was received and kept and is still retained by said board, and no objection has ever been made to the form or the sufficiency of the sureties of the said bond. The relator there-" upon demanded of the said board the awarding of a contract and the execution thereof in writing in due form for the printing of all the said sixteen reports, but the said board refused, solely on the ground that they contended that the relator was only entitled to such contract for the said six reports on which its bid was the lowest, and that Jacob North & Co. were entitled to another contract for the printing of the said six reports on which its bid was the lowest, and that the State Journal Company was entitled to the contract for the printing of the said four reports on which its bid was the lowest. The said board neither made nor have any other objection to the relator’s demand than as aforesaid. They only objected
To the writ the board filed an answer, in which it admitted the formal allegations of the writ and the allegations in regard to the advertisement for bids, the bidding, and that relator’s bid was accompanied by its bond in the
“Further answering said relator’s petition, these respondents show to the court that on the - day of December, 1896, an action was commenced in the supreme court of the state of Nebraska entitled ‘The State of Nebraska, ex rel. The Woodruff-Dunlap Printing Co., v. Joseph S. Bartley, State Treasurer, Eugene Moore, Auditor of Public Accounts, and Joel A. Piper, Secretary of State, Constituting a State Printing Board,’ in which action relator sought to procure a writ of mandamus from raid court to compel the said respondents therein to enter into a contract with the said relator therein the same as is now prayed for by said relator in the petition now filed in this court. They allege that said action was pending and undetermined when the respondents therein named went out of office on the 7th day of January, 1897; that
“10. These respondents allege that the said supreme court of the state of Nebraska had full jurisdiction of the subject-matter of the said action and of the person of the relator and of these respondents, and that the judgment so entered in said court on said 4th day of March, 1897,*32 lias never been reversed, vacated, or modified, bnt is now in full force and affect.
“Wherefore these respondents say that by reason of the premises herein set forth, the relator’s rights in the premises have been fully adjudicated and determined by the supreme court of the state of Nebraska, and this court is wholly without jurisdiction to hear and determine the matters complained of in the relator’s petition filed herein.”
Of the issues presented there was a trial resulting in a denial of the application for the writ and a judgment of dismissal of the action. The relator has removed the case to this court by proceedings in error.
There are but two main questions raised and discussed by counsel, one that the determination of the awarding of the contract was committed to the board and a matter resting within its discretion, hence not controllable by mandamus; and a second, that of a former adjudication in an original action in this court. The provisions of statute in relation to the state printing board and its duties, etc., will be found in chapter 68, Compiled Statutes, and chapter 61, Session Laws, 1883, of which section 1 states what officers shall constitute the state printing board, and that it “shall have general supervision over the matter of state printing, in the manner provided by this act.” Section 2 is as follows: “The printing of all bills for the legislature, with such matters as may be ordered by either house thereof, to be printed in bill form, shall be let in one contract. The printing and binding of the senate and house journals shall be let in another contract. The printing and binding, of reports of state officers authorized by law to be printed, and all oilier reports and documents ordered by the legislature, except such as enter into and form a part of the journals, shall be let in another contract. The printing and binding of the laws, joint resolutions, and memorials enacted by the legislature shall be let in another contract. And the printing and binding of all blanks, blank books, and cir
There is little or no substantial conflict in regard to the facts. It appears that for the printing of items in Class
Another question which presents itself is, does the law require the board to award the contract to the lowest bidder? It does not in express terms. If it does not by implication, it does not at all. The section 8 furnishes us some strong indications on this subject. It states that if the bidder to whom the contract is awarded fails to furnish the prescribed bond and perfect his contract, it shall be let to the next lowest bidder. It does not seem sensible, in view of this further provision to which we have just alluded, that it was in the contemplation of the legislature that the contract should or would in the first instance be awarded to other than the lowest bidder. The law provides that there shall be an advertisement and a competitive bidding. The main object and purpose of the last can be none other than to secure to the state the printing to be done as economically as possible. To say that it was the intention to let the contract to any other than the lowest bidder would be a construction which would in effect destroy one of the most beneficial and express purposes of the law; hence we must conclude that the awarding of the contract is to be to the lowest responsible bidder. In regard to the character of the work to be performed, its quality, or any details, they were not committed by the law to the discretion or judgment of the board in such manner that the settlement of any of them was connected with the awarding of the contracts in such a manner or degree as to make such settlement become of any moment in, or to enter into the determination of the board, of to whom the contract should be
In regard to the effect of the provision that the board may reject any and all bids, we will content ourselves with a quotation from the opinion of this court in the case of State v. Saline County, 19 Neb., 253: “The board is also given authority to reject any and all bids. This is simply the reservation of a right to protect the interests of the county, as where there is a combination to prevent competition, or other cause, by reason of which the county would be defrauded. But in such case the board is not absolved from the duty of letting the contract to the lowest bidder.” It may be added that a board may not arbitrarily or without cause reject bids. The issuance of an order to the board to award this contract to the lowest bidder would not interfere with or control the board in the determination of any matter committed by the act to its judgment and discretion. We are cited in the brief filed for respondents to the cases of the State v. Lincoln County, 35 Neb., 346, State v. Dixon County, 24 Neb., 106, and the State v. Kendall, 15 Neb., 262. The first two eited were applications for writs to issue ordering county boards to award contracts for certain county printing to the lowest bidders. The law did not require the boards
Prior to the change in January, 1897, individually, in state officers who are by law constituted the state printing board, the relator instituted an original action in this court, the object and purpose of which was to obtain the issuance of a writ of mandamus to compel the board to award it the contract for printing which it sought in the present action by the issuance of a similar writ out of the district court of Lancaster county to compel the board to award to it. To the pleading for relator in the original action in this court a demurrer was interposed for the
Revebsed and bemanded.