Douglas County Bd. of County Com'rs v. Pederson

• Decision Date: 07 March 1962
• Docket Number: No. 4465,4465
• Citation: 78 Nev. 106,369 P.2d 669
• Parties: The DOUGLAS COUNTY BOARD OF COUNTY COMMISSIONERS, Marvin Settelmeyer, Herbert Dressler, and Clyde A. Plimpton, constituting the members of said Board, Appellants, v. Bjarne PEDERSON, Respondent.
• Court: Nevada Supreme Court

Page 669

369 P.2d 669

78 Nev. 106

The DOUGLAS COUNTY BOARD OF COUNTY COMMISSIONERS, Marvin Settelmeyer, Herbert Dressler, and Clyde A Plimpton, constituting the members of said Board, Appellants, v. Bjarne PEDERSON, Respondent.

No. 4465.

Supreme Court of Nevada.

March 7, 1962.

Carl F. Martillaro, Dist. Atty., Douglas County, Minden, for appellants.

Laxalt & Laxalt, Carson City, for respondent.

THOMPSON, Justice.

The appellants will be referred to as the 'Board,' and the respondent as 'Pederson.'

Pederson sought a writ of mandamus in the district court to compel the Board to accept his bid and award him a contract for the construction and paving of a road in Douglas county. He contended that he was the 'lowest responsible bidder' within the meaning of N.R.S. 403.490(5). ¹ He does not assert that the Board acted fraudulently or in bad faith. He contends only that its conduct in rejecting his bid and awarding the contract to the next lowest bidder was arbitrary, capricious, and amounted to an abuse of discretion. The Board conceded that Pederson's bid was the lowest bid submitted, but denied that he was the lowest responsible bidder.

During the course of trial it became apparent that the road job had been substantially completed by the party to whom the Board had awarded the contract. Accordingly, the trial court permitted Pederson to amend his petition for a writ of mandamus, to request damages. N.R.S. 34.270. At the conclusion of trial, that court found that Pederson's bid was the lowest bid, that he was the lowest responsible bidder, and concluded that the Board had abused its discretion when it rejected such bid. Damages in the amount of $4,600, representing the normal anticipated profit to Pederson, had he been awarded the contract, were allowed by the court, and judgment for that amount was thereafter entered. The Board appeals.

The central question posed for our determination is whether mandamus is available to Pederson under the circumstances here presented. ² In 1881, the same basic problem was before this court in Hoole v. Kinkead, 16 Nev. 217. It was there held that the determination of whether a bidder was 'responsible' was a judicial and not a ministerial function; deliberation was required and discretion was to be exercised. For that reason the court said, 'A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment; and where it is vested with power to determine a question of fact, the duty is judicial, and however erroneous its decision may be, it can not be compelled by mandamus to alter its determination. Such has been the uniform decision of this and other courts. Where no discretion is given to an officer or body, mandamus lies to enforce a performance of the specific act required; but it is otherwise when the duty imposed requires deliberation and decision upon facts presented. It was for the board in this case to determine the lowest responsible bidder. They had no right to accept the lowest bid it they were not satisfied with the responsibility of the bidder, according to the definition of the word 'responsible' given above. They had the right to reject plaintiff's bid, and such was their duty, if, after examination, it was not, in their best judgment, the lowest responsible bid. The testimony before us is ample to show that, the board acted conscientiously, after faithful examination of all facts within their reach touching the questions here discussed, and their decision can not be disturbed in this proceeding.'

Of interest also is dictum in Reno Water, Land & Light Company v. Osburn, 25 Nev. 53, 66, 56 P. 945, 946, an injunction suit, where the court said: 'Under provisions requiring proposals to be awarded to the lowest responsible bidder, the board or officer charged with the award has no discretion, except as to the responsibility of the bidder * * *.' ³ [Italics ours.]

Hoole v. Kinkead, supra, appears to be in accord with the clear weight of authority. Annotation 80 A.L.R. 1382. Pederson candidly acknowledges this to be true. However, he seeks to dispose of that case by urging that the scope of mandamus has been extended by the opinion of this court in City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118, 359 P.2d 743. In that case, we affirmed the district court's judgment that a peremptory writ of mandamus should issue to require the city council to grant petitioner a use permit and business license for the operation of a wrecking yard. The council had denied such permit without any investigation, inquiry, or evidence to support its action, and against the recommendation of the planning commission, twice made, that the use permit be granted. Under such circumstances there was a manifest abuse of discretion. Indeed, it could properly be said that the discretion contemplated by law had not been exercised at all. The council had acted arbitrarily and capriciously.

The instant case is quite different. The Board, before voting to reject Pederson's bid, appointed a committee composed of a county commissioner, the county engineer, and the county road foreman to inquire about Pederson's responsibility. The inquiry disclosed that Pederson was not a 'prequalified' contractor with the State highway department, though such...