State ex rel. Helena Allied Printing Council v. Mitchell

• Decision Date: 01 November 1937
• Docket Number: 7727.
• Parties: STATE ex rel. HELENA ALLIED PRINTING COUNCIL et al. v. MITCHELL, Secretary of State.
• Court: Montana Supreme Court

74 P.2d 417

105 Mont. 326

STATE ex rel. HELENA ALLIED PRINTING COUNCIL et al. v. MITCHELL, Secretary of State.

No. 7727.

Supreme Court of Montana

November 1, 1937

Original proceeding by the State of Montana, on the relation of Helena Allied Printing Council and another, against Sam W. Mitchell as Secretary of State of the State of Montana, for a writ of injunction.

Petition for writ of injunction denied and proceeding dismissed.

SANDS C.J., dissenting.

Harrison J. Freebourn, Atty. Gen., and Mark Derr, Asst. Atty. Gen for respondent.

E. G. Toomey, of Helena, amicus curiae.

MORRIS Justice.

This is an original proceeding, praying for a writ of injunction to restrain the Secretary of State from purchasing 300 copies of each current report of the opinions of the Supreme Court for the publication of which a contract was entered into by the members of the court with Bancroft-Whitney Company, of San Francisco, on July 17, 1937.

Pursuant to the provisions of chapter 44 (sections 378-384) and section 283.1 of the Revised Codes, the members of the court caused the state purchasing agent to publish an advertisement inviting bids for the publication of the Supreme Court reports for a period of six years. Such advertisements are generally designated as proposals, and will be so hereinafter referred to. The proposal that was published by the state purchasing agent was as follows:

"Notice Printing of Montana Reports.

Sealed bids will be received by the State Purchasing Agent at his office in the Capitol, at Helena, Montana, on July 12, 1937, at 10 o'clock A. M., for a contract to publish the decisions of the Supreme Court for a term of six (6) years beginning July 1, 1937. These bids must be for entering into a contract in conformity with the provisions of sections 378 to 384, inclusive, and section 283.1 of the Revised Codes of 1935. Special attention is called to section 381, relating to the terms of the contract, and to section 383, which requires the publisher to whom the contract is awarded to give a bond as a guaranty for its fulfillment.

In order that the volumes contemplated in the contract may be kept up to the present standard of the Montana Reports, it will be specified in the contract that the publisher shall verify all cases cited in the opinions to be published, as to the spelling of the names of cases and the volume and page of the reports in which they are published, and shall add cumulative references so as to show by volume and page where the cases are reported in the Reporter System, and in the Annotated Reports.

Each bidder must endorse on the envelope containing his bid the words 'Bids for the Publication of Montana Reports.'

A. W. Engel,

State Purchasing Agent."

In response to such proposal two bids were received, one from Bancroft-Whitney Company, of San Francisco, and the other from the State Publishing Company, of Helena, Mont. The bid of Bancroft-Whitney Company offered to supply the volumes of the reports authorized to be contracted for by section 381, and to make and preserve the stereotyped matrices therein referred to, and in all particulars such bid was responsive to the proposal as published. The bid of the State Publishing Company was confined to an offer to furnish the 300 copies of each report published during the current six-year period referred to in section 381, but no offer was made in the bid to furnish copies of any of the old reports beginning with Volume No. 1 and including all reports published prior to those the publication of which was provided for in the contract of July 17, 1937. The reason given by the State Publishing Company for not submitting a bid responsive to the proposal in all particulars was:

"We cannot comply with the provisions of section 381 to furnish in full sets or odd volumes from No. 1 to date, but we have been advised legally that this is unconstitutional in that the State is a party to perpetuating a monopoly.

We can comply with all the other provisions of sections 378 to 384, inclusive, and have made arrangements with a Montana attorney with considerable experience to do the editorial work, etc., as called for in your published invitation for bids."

On July 17, 1937, four members of the court, Mr. Justice Stewart being absent, met to consider the bids submitted, and, after careful consideration thereof, the contract was awarded to Bancroft-Whitney Company and duly executed. It was the opinion of the members of the court when the bids were under consideration that but one bid was submitted which was responsive to the proposal as advertised.

On the 27th day of July, 1937, the complaint herein was filed with the clerk of this court. After describing the parties involved, and alleging the relation of each to the matters in controversy, the complaint refers to the Bancroft-Whitney Company bid, recites the bid of the State Publishing Company in full, mentions the award made to the Bancroft-Whitney Company, and then recites section 283.1, which section will hereafter be set out in full.

The complaint also recites, in substance, the provisions of sections 260 and 261, which provide for the union label of the branch of the International Typographical Union located in the city where such matter was printed, to appear upon the printed matter contracted for, and alleges that the contract of July 17th imposes no such requirements on Bancroft-Whitney Company, and that the contract for reports heretofore supplied by Bancroft-Whitney Company does not bear such label. It further alleges that section 381 by its provisions "creates a monopoly and is therefore unconstitutional, void and invalid," by reason of its being in violation of section 20, article 15, and section 26, article 5, of the Constitution of the State of Montana, in that "it grants special and exclusive privilege, immunity and franchise to Bancroft-Whitney Company," and "that by the terms of such section any other publisher desiring to bid in response to such notice would be required to furnish complete sets or odd volumes of the Montana Reports, and that it is impossible for any publisher, other than the Bancroft-Whitney Company, to comply with said notice for bids for the reason that Bancroft-Whitney Company alone has in its possession and under its control stereotyped matrices of each volume heretofore published, has copyrighted each volume so published, and that any other publisher who republished such volumes so copyrighted would do so in violation of the copyright laws of the United States."

It is then alleged that the contract of July 17th is void and unlawful for the reason that "bids were called pursuant to section 381, which section has been repealed by virtue of section 283.1." It is further alleged that the State Publishing Company bid should have been accepted by virtue of section 283.1, and that the contract awarded on July 17, 1937, is "wholly ineffectual" by reason of its not complying with section 283.1. It is then alleged that the Secretary of State has threatened to and will, unless restrained, make the purchase of 300 volumes from Bancroft-Whitney Company, as heretofore referred to, and that such volumes will be paid for out of funds derived from taxation, part of which relator Harry E. Silver contributed as a taxpayer.

The State Publishing Company, the unsuccessful bidder, is not a party to this proceeding and makes no complaint about the award made by the court, and would, according to a former decision of this court, have no standing in court, as an unsuccessful bidder, if it sought to be heard. State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 P. 485. Such being the rule, no one predicating his right to be heard in this proceeding on the ground of discrimination between bidders could show any greater right than such unsuccessful bidder.

Relators here, however, allege and contend they have a right to be heard by reason of being affiliates of the International Typographical Union, and the relator Silver further asserts the right to be heard on the ground of being a taxpayer. All grounds upon which relators allege any right to be heard are contained in paragraphs I and II of the complaint. The Attorney General, appearing for the Secretary of State, challenges all allegations of fact set forth in the two paragraphs mentioned. The right of the relators to be heard is thus brought directly in issue; their capacity as relators is denied; no evidence was presented to sustain the allegations of facts so challenged, leaving this vital issue supported by nothing but the assertions of the pleader. We think that a taxpayer, able to show substantial injury, would have a right to be heard, but the answer denies that any taxpayer appears as a plaintiff (or relator).

It is the rule of this court that in special proceedings only questions of law will be considered, but on rare occasions and in the interest of justice this rule has not been enforced and will be waived in this instance.

For the reasons stated, there is serious doubt about the capacity of either relator to maintain this proceeding in face of denial of capacity by the Attorney General. But, by reason of numerous allegations in the complaint to the effect that the court has entered into a void and illegal contract, the question of the capacity of the alleged taxpaying relator will be waived for the purpose of this decision in order that we may consider and determine the legality of the contract. However, the waiving of any defect of parties is not to be taken as establishing a rule on that point.

While the statutes are silent on the matter, we think that, by virtue of the duties imposed by chapter 44 (sections 378-384) on the members of the court, the court is thereby constituted a board of award for the...