State ex rel. Journal Printing Company v. Dreyer

• Decision Date: 02 June 1914
• Citation: 167 S.W. 1123,183 Mo.App. 463
• Parties: STATE OF MISSOURI ex rel. JOURNAL PRINTING COMPANY, Respondent, v. JOHN DREYER et al., Appellants
• Court: Missouri Court of Appeals

167 S.W. 1123

183 Mo.App. 463

STATE OF MISSOURI ex rel. JOURNAL PRINTING COMPANY, Respondent, v. JOHN DREYER et al., Appellants

Court of Appeals of Missouri, St. Louis

June 2, 1914

Appeal from Hannibal Court of Common Pleas.--Hon. William T Ragland, Judge.

AFFIRMED.

Judgment affirmed.

Charles E. Rendlen and Lewis O'Connor for Mayor and Aldermen appellants.

Charles E. Rendlen and D. H. Eby for Courier-Post Publishing Company appellant.

(1) Alternative writ must require respondent to do or show cause why he has not done so. It must be in the alternative or it is no alternative writ. 26 Cyc. 447; State ex rel. v. Board of Police Comrs., 108 Mo.App. 103; 2 Missouri Practice, Bacon, sec. 1041, p. 1155-56. Alternative writ can be no broader than petition. People ex rel. v. Board of Supervisors Clark County, 84 N.E. 697, 234 Ill. 62; 27 Cyc. 474. Where respondent has no power to perform the command, a writ will not go. High on Ex. Legal Remedies (3 Ed.), sec. 14, p. 19; 26 Cyc. 166-67. Respondents were for for the first time on September 18th given an alternative course of procedure, and then for the first time commanded to do an act and then to do so on a past and impossible day, viz., September 15th. This cannot be done. Mandamus is not a prerogative writ in the United States, but one must show himself entitled thereto. High on Ex. Legal Remedies (3 Ed.), secs. 3, 4, pages 6-8; sec. 9, p. 12; sec. 522, p. 488; sec. 537, p. 497; State ex rel. v. Lewis, 76 Mo. 381. (2) Findings of fact is a substitute for a special verdict. Nichols v. Carter, 49 Mo.App. 405. When the court sitting as a jury undertakes to or makes written findings of facts, it must find upon all the substantive or constitutive facts put in issue, failure to do so, or a general finding is not enough, and is reversible error, and open to attack in the appellate court. Sec. 2083, R. S. Mo. 1909; Freeman v. Hemenway, 75 Mo.App. 621; St. Louis Hospital Association v. Williams, 19 Mo. 612; Nichols v. Carter, 49 Mo.App. 401; Allison v. Darton, 24 Mo. 346. Where there is evidence pro and con on an issue, or the evidence is uncontradicted, there should be a finding thereon, not doing so is error. Insurance Co. v. Tribble, 86 Mo.App. 546; Cochran v. Thomas, 131 Mo. 278; Nichols v. Carter, 49 Mo.App. 401; Downing v. Bourlier, 21 Mo. 151. Having undertaken to make written findings of fact, being in the nature of special verdict, the court should find upon all constitutive facts that parties may make exception thereto in order that the appellate court may make a revision of the case. Exception is accomplished by motion for new trial, as here done. Citizens Bank v. Bolen, 121 Ind. 301, 23 N.E. 147; Railroad v. Hart, 119 Ind. 273; Nichols v. Carter, 49 Mo.App. 405. It has been held that if special finding is silent on a material point it is deemed a finding against the party who has the burden of proof. Cochran v. Thomas, 131 Mo. 278; Stotts City Bank v. Miller Lumber Co., 102 Mo.App. 75. If there is no evidence to support a finding of fact, such finding is reversible error. Freeman v. Hemenway, 75 Mo.App. 621; Nochols v. Carter, 49 Mo.App. 401. (3) The essence of the reason for the publication of the official acts of a municipal body is publicity, to the end that all who are to be bound by such official acts or whose property rights directly affected thereby shall be informed of their existence. 2 McQuillin, Municipal Corporations, sec. 697, p. 1514-15. The largest circulation enters into and is primary consideration as to which paper was the best. (4) In determining who is lowest and best bidder, judgment and discretion is required, it is not a ministerial act, and mere price alone is not the touchstone but here publicity and circulation. Price doesn't determine the best bidder. 2 Dillon Mun. Corp., sec. 811; 1 Elliott on Roads and Streets, sec. 636; 1 Abbott on Mun. Corp., sec. 268; State ex rel. Union Fuel Co. v. Lincoln, 94 N.W. 719; U. S. Wood Preserving Co. v. Sundmaker, 186 F. 678; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Meier, 142 Mo.App. 309. (5) The ordinances provide that, all contracts shall be let by contract to the lowest and best bidder, and the "city shall retain the right to reject any and all bids they may see fit." The above ordinance and advertisement thereunder makes the awarding of the printing contract and determination as to which is the lowest and best bid by the council a deliberative and discretionary act, and not a ministerial act, and can not be controlled by mandamus. State ex rel. Montfort v. Meier, 142 Mo.App. 309; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. Union Fuel Co. v. Lincoln, 94 N.W. 719; Stanley-Taylor Co. v. Board of Supervisors, 67 P. 783; U. S. Wood Preserving Co. v. Sundmaker, 186 F. 683; Paving Co. v. Murphy, 78 F. 28; State ex rel. v. Fort, 180 Mo. 108; State ex rel. v. Jones, 155 Mo. 576; State ex rel. v. Meier, 143 Mo. 446; State ex rel. v. Gregory, 83 Mo. 136. The laws and ordinances have committed the power of deciding to the defendant. Were the court to interfere, it might substitute its belief and its judgment for the belief and judgment of the board--a result our system does not contemplate. Stanley-Taylor Co. v. Board of Supervisors, 67 P. 783. (6) Relator is without sufficient interest to maintain this action. The rejection of a lowest bidder's proposal and the award to a higher bidder gives the disappointed bidder no contractual, vested or specific right that he can enforce in a court, nor can he bring mandamus thereon. Anderson v. School Board, 122 Mo. 61; Coquard v. School Board, 46 Mo.App. 6; U. S. Wood Preserving Co. v. Sundmaker, 186 F. 684; Colorado Paving Co. v. Murphy, 78 F. 28; Vincent v. Ellis, 88 N.W. 836; also cases cited under point 5. Petitioner must show he has a clear legal right to have the act performed by defendant; nothing essential to that right will be taken by intendment, and where the right is doubtful the writ will be denied. 5 McQuillin's Municipal Corporations, sec. 2545, p. 5270. (7) Presumption is that decision of municipal board was correct and regular, and that they have not abused their discretion. Fact that award is not made to lowest bidder in price does not indicate fraud. Kochtitzky v. Herbert, 160 Mo.App. 454; Gilmore v. Utica, 29 N.E. 843; Peckham v. Watsonville, 71 P. 169, 138 Cal. 242; Elliott on Streets, 410, 411; 26 Cyc., 476.

Chas. T. Hays and F. L. Schofield for respondent.

(1) The prime object and purpose of the law requiring that contracts for the city printing be awarded only on competitive bidding, was to protect the city and the citizens against extortion by favorites of partisan city councils. (2) This court will not, in a proceeding such as this, make its own independent and critical review of the evidence to determine whether it supports the findings of the court below. Creisser v. Emmons, 161 S.W. 613; Roedel v. Ins. Co., 160 S.W. 44; Lumber Co. v. Ice & Power Co., 160 S.W. 49; Winfrey v. Matthews, 161 S.W. 583. (3) Whatever the law may be in other jurisdictions, in this State it is firmly established that the writ of mandamus will lie both to correct and to control the action of executive boards and other tribunals, notwithstanding an official discretion may be reposed in them by law, where they have refused to exercise such discretion in a lawful way, fairly, impartially, reasonably and in good faith. State ex rel. v. Lafayette Co. Ct., 41 Mo. 221; State ex rel. v. Public Schools, 134 Mo. 296; State ex rel. v. Board of Health, 206 Mo. 550; State ex rel. v. Bourne, 151 Mo.App. 104; State ex rel. v. Roach, 230 Mo. 408; State ex rel. v. Philips, 96 Mo. 570; State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Broaddus, 234 Mo. 331; State ex rel. v. Caulfield, 234 Mo. 331; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Lamb, 160 S.W. 55. See, also, People ex rel. v. State Racing Com., 82 N.E. 723; Board Trustees v. State, 93 N.E. 851; State ex rel. v. Gunn, 92 Minn. 436; State Board v. People, 93 Ill.App. 436; State ex rel. Printing Co. v. Cornell, 71 N.W. 961; Board of Com. v. State, 120 P. 913; State v. Saline Co., 19 Neb. 253; State v. City of Shreveport, 50 So. 3; Adamson v. Railroad, 26 N.Y.S. 136.

ALLEN, J. Nortoni, J., concurs; Reynolds, P. J., dissents, expressing his views in a separate opinion.

OPINION

ALLEN, J.--

This is a mandamus proceeding instituted in the court of common pleas of the city of Hannibal. From a judgment awarding a peremptory writ in favor of relator, certain defendants have appealed to this court.

The relator is a corporation engaged in printing and publishing a daily newspaper in the city of Hannibal, known as the Hannibal Morning Journal, and in conducting a general printing business in said city. The defendants are the mayor of said city, the twelve aldermen composing the city council thereof, and the Courier-Post Publishing Company, the latter also being a corporation engaged in printing and publishing in such city a daily newspaper known as the Hannibal Courier-Post and in conducting a general printing business.

The controversy pertains to the awarding of a contract to do certain city printing for the city of Hannibal, to-wit, the publication and printing of the annual report of the auditor of said city, the proceedings of the city council, the various ordinances and resolutions passed by the latter, and various "locals" and notices pertaining to the affairs of said city.

It appears that the ordinance of the city require its council to let all contracts for work and material involving two hundred dollars or more, where the city is a party, to the lowest and best bidder, the city advertising for such bids at least three days before the same are opened. In the instant case it appears that the...