Butler v. Darst

• Decision Date: 17 January 1911
• Citation: 70 S.E. 119,68 W.Va. 493
• Parties: BUTLER v. DARST et al., Printing Com'rs.
• Court: West Virginia Supreme Court

70 S.E. 119

68 W.Va. 493

BUTLER v. DARST et al., Printing Com'rs.

Supreme Court of Appeals of West Virginia.

January 17, 1911

Submitted January 12, 1911.

Syllabus by the Court.

A mandamus will not go to a bidder for state binding to compel the commissioners of printing to award him the contract for such binding after they have awarded it to another bidder though the former was the lower bidder; the function of the board of commissioners involving discretion.

Quære Is this a suit against the state?

Petition of S. C. Butler for writ of mandamns against J. S. Darst Auditor, and others. Writ refused.

Poffenbarger, J., dissenting. Price, Smith, Spilman & Clay, for petitioner.

Wm. G. Conley, Atty. Gen., and Frank Lively, for respondents Darst and others. Mollohan, McClintic & Mathews, for respondent Guthrie.

BRANNON J.

S. C. Butler and W. H. Guthrie filed with the commissioners of public printing, composed of J. S. Darst, State Auditor, E. L. Long, State Treasurer, and M. P. Shawkey, state superintendent of schools, competing proposals for doing the public binding, under chapter 16, Code 1906. The board of commissioners awarded the contract for binding to Guthrie, who gave bond as required by the statute, and the award of the contract was approved by the Governor, under section 10, and the contract was filed in the Auditor's office, the place for its deposit fixed by that section. Section 5 prescribes that the commissioners shall award the contract "to the lowest responsible bidder," and, after the contract had been awarded to Guthrie, Butler discovered that his bid was lower than Guthrie's, arising from Guthrie's extending into the total column of his bid certain erroneous sums to which certain items of work would amount charged at the same rate in both bids. Then Butler asked the commissioners of printing to recall their award of the contract to Guthrie, and to award it to Butler, but the commissioners, being of opinion that the matter had passed out of their control, declined to do so; and now Butler asks of this court a mandamus to compel the commissioners to award him the contract for the state binding.

The Constitution requires the Legislature to provide by law that fuel, stationery, paper, binding, and printing shall be let by contract "to the lowest responsible bidder." Article 6, § 34 (Code 1906, p. lxi). Under that section the Legislature has enacted chapter 16 of the Code of 1906, making the State Auditor, Treasurer, and superintendent of schools a board or commission to publish notice for proposals or bids for furnishing the articles and materials and doing the work specified in the statute, and vesting in that board full, ample, and complete power to pass on all such bids, giving them all power over the business, subject only to the action of the Governor. Our Constitution and fabric of government divide governmental powers into three grand divisions, and prohibit the assumption by those exercising the powers of one of them of the just powers of another. This is a cardinal principle, a distinguished feature of our free government, always to be kept in mind, a great light which is always to be thought of in such cases as the present. The functions of the commissioners are very important in public administration, and are an essential part of the executive department. The judiciary must be very cautious when it interferes with the functions of the executive department. It was said by able men in an early period of our country's history that the courts were usurpatory of power, and inclined to dominate over other branches of government. The courts should not justify this charge. It does seem that the Constitution and statute intend and mean to invest the matter before us exclusively with this executive board erected by the Legislature under the mandate of the Constitution to deal with it. It is executive or political action, not judicially reviewable. It would seem that it was never intended that such matters should in any wise fall under the supervision of the courts, and be the subject of private litigation. If so, the public wheels might be impeded. The Legislature might meet and find its supplies for business involved in a lawsuit. So with the public offices. Where would be the end of delay and confusion? The character of the transaction or business repels that construction of the law. I do not say that under no circumstances can courts affect the action of executive officers where void of discretion, and only ministerial; but I do say that in this matter they cannot do so. I do say that, where with an executive commission of the character involved in this case there is lodged judgment and discretion, a court cannot control it by mandamus; and we hold that this board is vested with discretion in passing on such bids. It is said in Merrill on Mandamus, § 117, that the writ will go to compel public officers to let contracts to the lowest bidder, but not when vested with discretion. This is only the general rule that it will not go to control discretion. But it is urged upon us that the law says that the contract must be given to the lowest bidder, without any discretion in the printing commission, if he is pecuniarily responsible. This cannot be sustained. In Douglass v. Commonwealth, 108 Pa. 559, an act directed contracts for supplies to be awarded "to the lowest responsible bidder," and it was held that the word "responsible" does not refer to pecuniary ability only, that the act called for "the exercise of discretionary powers on the part of the city, and if they act in good faith, though erroneously or indiscreetly, mandamus will not lie to compel them to change their decision." State v. McGrath, 91 Mo. 386, 3 S.W. 846, holds that "the duties of officers intrusted with the letting of contracts for public work to the lowest responsible bidder are not of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of the courts by mandamus." It held that mandamus should not go to compel the commissioners of public printing to award the contract to one on the ground that he was the lowest bidder. This principle is supported by 26 L. R. 710; 2 Page on Contracts, p. 1638; State v. Hermann, 63 Ohio St. 440, 59 N.E. 104; click here Mills v. Larrabee, 78 Iowa 97, 42 N.W. 593; People v. Kent, 160 Ill. 655-662, 43 N.E. 760; State v. Rickards, 16 Mont. 145, 40 P. 210, 28 L.R.A. 298, 50 Am.St.Rep. 476 (strong case). A bidder might be worth thousands, and yet be dissipated, negligent, dilatory, or dishonest, and therefore not responsible. There is no such imputation against Butler; but I speak of the character of the official functions as discretionary, and therefore mandamus does not lie.

In State v. Board, 24 Wis. 683, it was held that where the law said the contract should go to the lowest bidder, after his bid had been rejected and the contract let to another, he had no right to a mandamus to compel the execution of a contract to him. The Maryland case--Pavement Co. v. Mahool, 110 Md. 397, 72 A. 833--holds that the better doctrine in all cases of this nature, and supported by "an almost uniform current of authority" that duties of officers intrusted with "letting of contracts for public improvements to the lowest bidder are not duties strictly of ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of courts by mandamus." It says the courts will not control such officers in absence of fraud or collusion. See 28 Cyc. 663; 20 Ency. L. 1169.

Butler goes on the theory that the statute confers on him a right calling for mandamus; but I find it laid down in Page on Contracts, § 1049, that "such statutes are intended for the benefit and protection of the public, rather than that of the bidders *** and they confer no absolute right upon a bidder." This rule seems well supported as denying mandamus. State ex rel. Eaves v. Rickards, 16 Mont. 145, 40 P. 210, 28 L.R.A. 298, 50 Am.St.Rep. 476. In High, Extra. L. Rem. § 92, it is laid down that duties of letting to lowest bidder for public work is not a ministerial duty, "but involves the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus. And the true theory of all statutes requiring the letting of such contracts to the lowest bidder is that they are designed for the benefit and protection of the public, rather than that for bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus after it has been already awarded to another." The case of Ginn & Co. v. School Book Board, 62 W.Va. 428, 59 S.E. 177, holds that the school board cannot be compelled by mandamus to renew a contract for another period. Its principle and cases it cites will sustain the position that the statute involved in this case was not made for the benefit of the bidder, and confers upon him no title or right enforceable by mandamus, and, moreover, that the printing board has discretion so as not to be subject to mandamus. It makes no difference that the pecuniary responsibility of Butler was not and is not questioned. It does not change the cast of the function of the board. It does not take away their discretion. The defendants say that, whilst Butler's bid was lowest for binding taken as a whole for that and printing and stationery, it was not lower, and that they could not say, even if they had known the mistake, they would have let the binding contract to Butler, as they might have deemed it best to deal with one bidder for all. Certainly this was in their discretion.

Another question has suggested itself. The contract was complete and, as...