Reiner v. Clarke County

• Decision Date: 05 January 1926
• Docket Number: 19553.
• Citation: 137 Wash. 194,241 P. 973
• Parties: REINER v. CLARKE COUNTY et al.
• Court: Washington Supreme Court

241 P. 973

137 Wash. 194

REINER v. CLARKE COUNTY et al.

No. 19553.

Supreme Court of Washington

January 5, 1926

Department 1

Appeal from Superior Court, Clarke County; Hall, Judge.

Action by Frank Reiner against Clarke County and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

McMaster Hall & Schaefer, of Vancouver, for appellant.

Miller Wilkinson & Miller, of Vancouver, for respondents.

HOLCOMB J.

This is an action by a taxpayer of Clarke county, praying an injunction against respondents, the county commissioners enjoining them from proceeding with an alleged contract with O. D. Wolfe & Co., and from allowing any claims or estimates an account of a certain contract attempted to be entered into between them for the surfacing of about 13 miles of highway in Clarke county. An injunction was also prayed to enjoin the respondent county auditor from drawing warrants against the general road and bridge fund of the county in payment of claims or estimates made by O. D. Wolfe & Co., or by the county engineer in the operation of the contract. An injunction was also prayed enjoining the county treasurer from paying warrants presented to him against the general road and bridge fund of Clarke county on account of the operation of the contract.

The complaint charges that the county commissioners of Clarke county advertised for bids for the letting of a contract for the improvement of the highway, the bids to be opened on June 8, 1925, at 11 a. m.; that on June 8, 1925, the county commissioners met and received the bids, and adjourned until June 9, 1925, at 2 o'clock p. m.; that among other bids submitted to the county commissioners was one by O. D. Wolfe & Co. and one by Nick Casciato; that the one by O. D. Wolfe & Co. was $2,843.08 higher than the bid submitted by Casciato, and it is alleged that the county commissioners in letting the contract fraudulently and arbitrarily, without cause or reason, and against the best interest of Clarke county, awarded the contract to O. D. Wolfe & Co., and failed and refused to award it to the lowest and best bidder, namely Casciato; that the refusal to award the contract to Casciato was not on account of the irresponsibility of Casciato, nor his lack of experience, nor the lack of facilities and equipment on his part for carrying out the contract, but was solely and entirely on the ground and for the reason that Casciato was not a resident of Clarke County, or of this state, while O. D. Wolfe & Co. was such resident. It is further alleged that the contract was entered into between the county commissioners and O. D. Wolfe & Co. on June 9, 1925, for the performance of the contract.

It was further alleged that the county commissioners reserved the right to reject any and all bids; that the notice inviting bids was published in the weekly issues of the Clarke County Sun, on May 22, May 29, and June 5, of 1925; the Clarke County Sun being at the time of the publication the official newspaper of Clarke county. The bid of O. D. Wolfe & Co. was alleged to be in a total sum of $64,304.83, and that of Casciato in the total sum of $61,461.75.

To the complaint defendants answered; O. D. Wolfe & Co. separately answering, and the county officers joining in one answer, separately denying the charges of fraud. The allegations as to the amounts bid by the successful bidder and Casciato were admitted, and the allegations as to the length of time and the medium in which the notice for bids was published was also admitted. It was denied that the bid of Casciato was the lowest and best bid received. It was also affirmatively alleged by the contractor that, in order to complete the contract as contemplated, it was necessary for the contractor to enter immediately upon the construction of the work and perform the work during the dry season in a prompt and diligent manner, and that the contractor immediately commenced to make preparations for the doing of the work, and before the action had been begun the contractor had entered upon the performance of the work, and had expended sums of money aggregating about $25,000; that, if the contractor should be prohibited from completing this contract, it would suffer heavy damages; and that the damages are of such nature as are incapable of being reasonably ascertained and estimated in dollars and cents. It is therefore alleged that appellant was guilty of laches in not acting before the contractor had incurred such expenses, and ought to be estopped from claiming that the contract is illegal or void upon the grounds set forth in the complaint. The complaint was verified by appellant on June 25, 1925, and filed on the same day, which would be 16 days after the letting of the contract.

After the trial, upon the merits to the court, the trial court denied the injunction upon the grounds that there was no allegation or proof that any loss or damage had been or would be sustained by the taxpayers of Clarke county because of the insufficiency of the publication of the call for bids, and that the company to whom the contract was awarded had spent large sums and incurred obligations in carrying out the contract before the suit was instituted. It was thereupon ordered that the action be dismissed, and this appeal results.

Appellant urges that the restraining order should have been granted upon two grounds: (1) Insufficiency of the publication of the notice for bids, being only 17 days, while the statute requires 3 weeks; and (2) abuse of discretion, or failure to exercise discretion on the part of the board of county commissioners in awarding the contract to respondent contractor, when their bid was nearly $3,000 higher than the lowest bid, solely because the lowest bidder was not a resident of this state.

Respondents insist that the insufficiency of the publication of the call for bids was not an issue in the case, inasmuch as there was no charge in the complaint that the letting of the contract was illegal because of lack of sufficient notice, or that respondents had no information of an intention to urge the lack of sufficient time in the publication of the notice for bids for the purpose of sustaining the cause of action. It is also urged by respondents that there is nothing in this case to show that there was...