R.G. Wilmott Coal Co. v. State Purchasing Com'n

• Decision Date: 22 November 1932
• Parties: R. G. WILMOTT COAL CO. v. STATE PURCHASING COMMISSION et al.
• Court: Kentucky Court of Appeals

54 S.W.2d 634

246 Ky. 115

R. G. WILMOTT COAL CO. v. STATE PURCHASING COMMISSION et al.

Court of Appeals of Kentucky

November 22, 1932

Appeal from Circuit Court, Franklin County.

Action by R. G. Wilmott, doing business under the trade-name and style of the R. G. Wilmott Coal Company, against the State Purchasing Commission and others. From an adversed judgment plaintiff appeals.

Affirmed.

H. C Cress, of Danville, for appellant.

Bailey P. Wootton, Atty. Gen., Overton S. Hogan, Asst. Atty. Gen and E. V. Puryear, of Danville, for appellees.

CREAL C.

R. G Wilmott, who is engaged in the retail coal business at Danville under the trade-name and style of R. G. Wilmott Coal Company, instituted this action in the Franklin circuit court on September 10, 1931, against the state purchasing commission, Clell Coleman, auditor, and the Danville Ice & Coal Company, alleging, in substance, in his petition that the purchasing commission advertised for bids for furnishing run of mine coal to the Kentucky School for the Deaf at Danville for the fiscal year beginning July 1, 1931, and ending June 30, 1932; that within the time provided in the advertisement he filed with the commission his bid offering to furnish to the School for the Deaf run of mine coal for the price of $3.43 delivered, and at the same time executed and tendered to the commission his bond with good and sufficient surety conditioned for the faithful performance of his bid; that thereafter the commission executed and delivered to the Danville Ice & Coal Company a contract to supply and deliver coal to the School for the Deaf for the sum of $3.59; that he was the lowest and best bidder; and that the act of the purchasing commission in awarding the contract to the Danville Ice & Coal Company was in violation of the statute of this state. He asked that the contract made by the commission with the Danville Ice & Coal Company be canceled and held to be null and void; that the auditor be enjoined and restrained from drawing his warrant on the treasurer in payment for coal delivered under the contract; and that the purchasing commission be required by mandatory order to award to him the contract for the delivery of the coal for the balance of the fiscal year ending June 30, 1932.

The state purchasing commission and the auditor filed a demurrer to the petition and, without waiving same, filed answer. The Danville Ice & Coal Company filed general and special demurrers, which were sustained, and thereupon plaintiff filed an amended petition alleging that he is a citizen and tax payer of the commonwealth; that the state purchasing commission, acting by and through its chairman, by fraud or mistake, accepted the bid of its codefendant, the Danville Ice & Coal Company, and entered into a contract with that company to furnish coal to the Kentucky School for the Deaf for the fiscal year beginning July 1, 1931; and that but for such fraud or mistake, his bid would have been accepted and the commission would have entered into a contract with this plaintiff to furnish such coal. He also filed a second amended petition, in which he alleged that the fraud and mistake charged in the amended petition consisted in the following:

"That this plaintiff duly transmitted to and filed with the defendant, State Purchasing Commission his bid, who unlawfully, wrongfully, and in violation of plaintiff's rights, either by fraud, oversight, mistake or collusion, failed or refused to read or to consider said bid.

That this plaintiff was the lowest and best bidder having regard for the quality and price of the product bid upon and offered to be furnished to the Kentucky School for the Deaf and that if his said bid had been read, received and honestly and fairly considered this plaintiff would have been successful bidder thereon and the contract to furnish coal for said School for the Deaf would have been awarded to this plaintiff."

A demurrer to the petition as thus amended having been sustained and plaintiff declining to further plead, his petition was dismissed and he has appealed.

Counsel for appellant prefaces his argument for reversal with the assertion that section 3990-15, Kentucky Statutes, relating to the letting of contracts for materials, equipment, and supplies for the state is mandatory in so far as it provides that such contract shall be awarded to the lowest and best bidder. However, he qualifies this assertion by the further statement that the statute in question vests in the commission a discretion in determining who is the lowest and best bidder after taking into consideration all the attending circumstances. There is ample authority supporting the contention that the provision in question is mandatory, and there is practical unanimity of authority that statutes of this and like character vest officials charged with their administration with a wide discretion. Unquestionably this section of the statute clothes the commission with a discretion to determine in every instance who is the lowest and best bidder, and while in a number of states it has been held that courts will not interfere in cases of this character involving an exercise of discretion upon the part of officials, we find the greater...