State ex rel. Capitol Business Equipment, Inc. v. Gates

• Decision Date: 11 May 1971
• Docket Number: No. 13080,13080
• Citation: 180 S.E.2d 865,155 W.Va. 64
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. CAPITOL BUSINESS EQUIPMENT, INC., a Corp. v. John M. GATES, Commissioner, etc., et al.

Page 865

180 S.E.2d 865

155 W.Va. 64

STATE ex rel. CAPITOL BUSINESS EQUIPMENT, INC., a Corp. v. John M. GATES, Commissioner, etc., et al.

No. 13080.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1971.

Decided May 11, 1971.

Syllabus by the Court

1. 'The writ of mandamus will not issue to compel the performance of a duty already discharged.' Point 1, syllabus, Monongalia Improvement Company et al. v. Morris, Judge, etc., 106 W.Va. 243 (145 S.E. 387).

2. 'A writ of mandamus will not be issued in any case when it is unnecessary or when, if used, it would prove unavailing, fruitless or nugatory.' Point 6, syllabus, Delardas v. Morgantown Water Comm., 148 W.Va. 776 (137 S.E.2d 426).

3. 'Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' Point 1, syllabus, State ex rel. Lilly v. Carter, 63 W.Va. 684 (60 S.E. 873).

Angel, Lewis, Ciccarello & Masinter, Arthur T. Ciccarello, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Victor A. Barone, Asst. Atty. Gen., Charleston, for respondents.

BERRY, Judge:

This mandamus proceeding instituted under the original jurisdiction of this Court by the petitioner, Capitol Business Equipment, Incorporated, against respondents, John M. Gates, Commissioner, Department of Finance and Administration for the State of West Virginia, and Ben E. Rubrecht, Purchasing Director for the State of West Virginia, seeks to compel them to reinstate the petitioner to the right to bid on state purchases and to award to it such contracts to which it may be entitled under the laws of the State of West Virginia. A rule to show cause was issued by this Court on March 30, 1971, returnable April 20, 1971, but before the return day of the rule the respondents reinstated the petitioner to do business with the State of West Virginia in the Purchasing Division of the Department of Finance and Administration. An answer was filed by the respondents setting out that the petitioner had been reinstated to do business with the State and that the respondents would recognize any bids submitted by the petitioner, and by virtue of such action it has rendered the question presented by the petitioner moot.

The case was submitted on arguments and briefs of the respective parties on the return day of the rule. However, during the argument for the petitioner it was insisted that the case was not moot, because of the fact that the respondents had sent a list of questions to be answered by the petitioner, to which the petitioner apparently objected by contending that its constitutional rights were being violated; and petitioner insisted that this Court should order the petitioner restored to the right to do business with the State without any qualifications.

The issue with regard to answering the questions was not raised by the pleadings. It appears from a form letter sent to the petitioner, and apparently to other companies doing business with the State, a copy of which was filed with the papers in this case, that the questions merely inquired of the recipients whether or not they had done any business whatsoever, either directly or indirectly with the State or counselled with anyone doing business with the State, since their suspension from doing such business.

The petitioner was suspended from the right to do business with the State on January 6, 1970, by predecessors of the respondents. The suspension came as the result of the petitioner having been indicted by the grand jury of the Intermediate Court of Kanawha County in connection with purchasing irregularities. Code, 5A--3--39, as amended, clearly gives the Commissioner of Finance and Administration the authority upon recommendation of the Director of the Purchasing Division to suspend the right and privileges of anyone to bid on state purchases when the Commissioner has reason to believe that such person has violated sny of the provisions of the purchasing law or rules and regulations of the director. An appeal from the suspension was denied April 23, 1970, by the Purchasing Division Appeal Board in accordance with the provisions of Code, 5A--3--40, as amended.

It is not clear from the record in this case why the petitioner was not reinstated after the expiration of one year as provided in the statute. Code, 5A--3--39, as amended. It may have been for any number of reasons, such as information that the petitioner was continuing to violate some rules or regulations, or that he had failed to supply certain information requested by the respondents with regard to its activities. The letter from the...