Berney v. Alexander

• Decision Date: 15 March 1919
• Docket Number: 2384.
• Parties: BERNEY v. ALEXANDER et al.
• Court: Nevada Supreme Court

178 P. 978

42 Nev. 423

BERNEY v. ALEXANDER et al.

No. 2384.

Supreme Court of Nevada

March 15, 1919

Original proceeding in mandamus by E. S. Berney against W. B Alexander and others, to compel the execution of a contract for highway construction. Peremptory writ issued.

Hoyt Gibbons, French & Henley, of Reno, for petitioner.

L. B Fowler, Atty. Gen., and Robert Richards, Deputy Atty. Gen for respondents.

COLEMAN O. J.

This is an original proceeding in mandamus.

The petition alleges that the respondents are and constitute the department of highways of the state of Nevada, and as such are charged with the duty of executing all contracts for the construction of state highways within this state for which they have advertised for and accepted bids in accordance with law; that prior to the filing of the petition said department of highways determined that a certain portion of state highway, route 4, be built in Nye county, and as by law provided resolved to let the contract for the construction thereof, and in pursuance thereof advertised for bids for the building of a certain portion of said route 4; that in accordance with law petitioner made a bid for the performance of said work, and accompanied such bid by a certified check for 5 per cent. of the amount of said bid; that the bid of petitioner was thereafter duly accepted by the respondents and the said department of highways, and the contract for the performance of said work was duly awarded to petitioner by respondents and said department of highways in the manner provided by law; that thereafter, and within ten days after notice of said award, petitioner signed, executed, and delivered to respondents and said department of highways, together with a bond as required by law, a contract for the performance of said work, which was accompanied by plans and specifications, which contract had been prepared by respondents for execution by petitioner, with a request that the said contract be executed by respondents; that respondents refused to execute the same, for the reason that petitioner is a member of the present Legislature of the state of Nevada. The petition further shows that the petitioner has no plain, speedy, or adequate remedy at law.

To the petition an answer was filed, wherein it is admitted that petitioner has no plain, speedy, or adequate remedy at law, and as a defense pleads section 2827 of the Revised Laws of 1912, which reads:

"It shall not be lawful for any officer of state, or member of the Legislature, alderman, or member of the common council of any city in this state, or for the trustees of any city, town, or village, or for any county commissioners of any county, to become a contractor under any contract or order for supplies, or any other kind of contract authorized by or for the state, or any department thereof, or the Legislature, or either branch thereof, or by or for the aldermen or common council, board of trustees, or board of county commissioners of which he is a member, or to be in any manner interested, directly or indirectly, as principal, in any kind of contract so authorized."

The section pleaded in the answer as a defense to the proceeding, when stripped of all matter not pertinent to this proceeding, and relating to legislators only, reads:

"It shall not be lawful for any *** member of the Legislature *** to become a contractor under any contract *** authorized by *** the Legislature *** of which he is a member. ***"

There is no need to take into consideration any part of the statute in...