State ex rel. Johnson v. Sevier

• Decision Date: 20 October 1936
• Citation: 98 S.W.2d 677,339 Mo. 483
• Parties: State of Missouri at the relation of George C. Johnson, State Purchasing Agent, and the General Electric X-Ray Corporation, a Corporation, Relators, v. Nike G. Sevier, Judge of the Circuit Court of Cole County
• Court: Missouri Supreme Court

98 S.W.2d 677

339 Mo. 483

State of Missouri at the relation of George C. Johnson, State Purchasing Agent, and the General Electric X-Ray Corporation, a Corporation, Relators, v. Nike G. Sevier, Judge of the Circuit Court of Cole County

Supreme Court of Missouri

October 20, 1936

Provisional rule made absolute.

Roy McKittrick, Attorney General, and James L HornBostel, Assistant Attorney General, for George C Johnson; Ragland, Otto & Potter for General Electric X-Ray Corporation.

(1) Respondent, as judge of the circuit court, is without jurisdiction to determine which is the "lowest and best bidder." That power and that duty are exclusively conferred by statute upon relator Johnson, as State Purchasing Agent. Laws 1933, pp. 410-414; State ex rel McDowell, Inc., v. Smith, 67 S.W.2d 53; State ex rel. v. McGrath, 91 Mo. 393; Anderson v. Public Schools, 122 Mo. 61; State ex rel. v. Meier, 142 Mo.App. 309; State ex rel. v. Dickey, 280 Mo. 536; Coquard v. School District, 46 Mo.App. 6; U.S. Wood Preserving Co. v. Sundmaker, 186 F. 684. (2) The signing and issuing of the alternative writ of mandamus by respondent was a gross abuse of jurisdiction and, consequently, in excess of jurisdiction. Thus, prohibition lies in this case. State ex rel. v. Burney, 193 Mo.App. 336; State ex rel. v. Wood, 155 Mo. 445; State ex rel. v. Westhues, 290 S.W. 447; State v. Bird, 253 Mo. 581; Dahlberg v. Fisse, 40 S.W.2d 610; State ex rel. v. Mulloy, 331 Mo. 776; State ex rel. v. Mulloy, 329 Mo. 1. (3) No fact is alleged in the alternative writ of mandamus that tends to show that relator Johnson, as Purchasing Agent, in determining that the General Electric X-Ray Corporation was the "lowest and best bidder," did not honestly exercise the discretion vested in him by the statute. The allegations in the writ to the effect that Johnson's act in awarding the contract to the General Electric X-Ray Corporation was "intentional, wrongful, arbitrary, capricious . . . in bad faith and without any excuse or justification in law or in fact, etc.," are simply rhetorical -- bald conclusions without any factual basis. The one fact upon which it is attempted to base these allegations is the fact that the bid of the General Electric X-Ray Corporation was $ 14,800, while the bid of the Greb X-Ray Company was only $ 13,602. But this fact does not give rise to an inference that the State Purchasing Agent was not acting in good faith and the exercise of an honest discretion. State ex rel. v. McGrath, 91 Mo. 386; Anderson v. Public Schools, 122 Mo. 61; Finley v. Williams, 29 S.W.2d 104; Thompson v. Farmers Exc. Bank, 62 S.W.2d 813; State ex rel. v. Dickey, 280 Mo. 536; State ex rel. v. Meier, 142 Mo.App. 309; Coquard v. School Dist., 46 Mo.App. 6; U.S. Wood Preserving Co. v. Sundmaker, 186 F. 684. (4) Mandamus does not lie except where the relator has a clear legal right to the thing demanded and it is the imperative duty of respondent to perform the action required. State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. Snyder v. Newman, 91 Mo. 451; State ex rel. v. Stone, 269 Mo. 342; State ex rel. v. Williams, 99 Mo. 303; State ex rel. v. Bridge Co., 206 Mo. 134. (5) Greb X-Ray Company, relators in the mandamus proceeding, have no right or title to enforce by mandamus. State ex rel. v. McGrath, 91 Mo. 386; Anderson v. Public Schools, 122 Mo. 61; Butler v. Printing Commrs., 68 W.Va. 493; Times Publishing Co. v. Everett, 9 Wash. 518. (6) While prohibition is a discretionary right it should issue in this case. The mandamus proceeding which has been instituted in the circuit court will operate to delay the State in the carrying out of its program of improving and making additions to its eleemosynary institutions. Appeal or writ of error will not therefore be an adequate remedy. State ex rel. v. Hall, 17 S.W.2d 939; State ex rel. v. Sevier, 69 S.W.2d 666. (7) Circuit courts, generally speaking, have power to issue writs of injunction, but whether such jurisdiction exists with reference to a given case depends upon the averments of the bill for injunction. State ex rel. v. Westhues, 290 S.W. 447; State ex rel. v. Wood, 155 Mo. 445.

H. P. Lauf and John O. Bond for respondent.

(1) The courts may in a writ of mandamus inquire into the issue whether or not a public official has acted dishonestly, collusively or fraudulently in the exercise of his official discretion. State ex rel. Journal Ptg. Co. v. Dreyer, 183 Mo.App. 481; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Public Schools, 134 Mo. 296; State ex rel. v. Board of Health, 103 Mo. 29; State ex rel. v. Roach, 230 Mo. 446. (2) Where a private individual has a special and peculiar interest in the enforcement of the public right or the performance of the public duties, apart from the interest that he has as a member of the public at large, he is entitled to protect and enforce it by mandamus. State ex rel. v. Dreyer, 183 Mo.App. 492; State ex rel. Clark v. Smith, 104 Mo. 666. (3) A writ of prohibition will not be issued as a substitute for demurrer to the petition. State ex rel. v. Pearcy, 41 S.W.2d 404. (4) Good pleading requires that only ultimate facts be stated in the petition and evidentiary matters should not be stated. Cantrell v. Knight, 72 S.W.2d 198; Peterson v. Cap Sheaf Bread Co., 21 S.W.2d 221; Holland Banking Co. v. Continental Natl. Bank, 22 S.W.2d 827. (5) Legal conclusions do no harm if they appear as the result of, or are supported by pleaded issuable facts. Corley v. Montgomery, 46 S.W.2d 285. (6) A pleading is to be liberally construed and will be sustained however inartistically the facts may be stated. Corley v. Montgomery, 46 S.W.2d 285.

Frank, J. All concur, except Hays, J., who also concurs except as to the ruling concerning the cases of State ex rel. National Bank v. Bourne and State ex rel. Journal Printing Company v. Dreyer et al.

OPINION

FRANK

Prohibition: Relators seek to prohibit Honorable Nike G. Sevier, Judge of the Circuit Court of Cole County, from proceeding further with a certain mandamus suit pending in said court.

The pertinent facts are, in substance, as follows:

Relator, George C. Johnson, is purchasing agent for the State and as such is authorized by statute to purchase supplies, materials, equipment, etc., for all departments of the State. [Laws 1933, p. 410.] Said statute provides that all purchases shall be based on competitive bids; that on any purchase where the estimated expenditure shall be two thousand dollars or over, the purchasing agent shall advertise for bids, and the contract shall be let to the lowest and best bidder. The statute further provides that the purchasing agent shall have the right to reject any or all bids.

The purchasing agent advertised for bids for the furnishing and installation of an X-ray apparatus to be installed in the Missouri State Sanatorium located at Mount Vernon. Three bids were received as follows:

Rosenthal X-Ray Company

$ 14,944.25

General Electric X-Ray Corporation

$ 14,800.00

Greb X-Ray Company

$ 13,602.00

The purchasing agent awarded the contract to the General Electric X-Ray Corporation at $ 14,800. The Greb X-Ray Company, a partnership composed of E. M. Greb and C. T. Davis, brought mandamus in the Circuit Court of Cole County against the purchasing agent and the successful bidder praying that said purchasing agent be commanded to rescind the award of the contract to the General Electric X-Ray Corporation and award same to said Greb X-Ray Company. An alternative writ of mandamus was issued by said circuit court in accordance with the prayer of the petition therefor. The purchasing agent and the successful bidder, as relators, then sought our writ of prohibition to prohibit the circuit court from taking further action in said mandamus proceeding. Our provisional rule issued to which respondent made return in the nature of a demurrer and motion to quash. The cause was orally argued and submitted for judgment on the pleadings.

The authorities are practically unanimous in their announcement of the general rules that the duties of officers intrusted with the letting of contracts for public works or public improvements to the lowest and best bidder are not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus. This is especially true where, as in the case at bar, the officer is authorized to reject any or all bids. [High, Extraordinary Remedies (3 Ed.), p. 101, sec. 92; Coquard v. School District, 46 Mo.App. 6; State ex rel. v. McGrath, 91 Mo. 386 393, 3 S.W. 846; State ex rel. Montfort v. Meier, 142 Mo.App. 309, 126 S.W. 986; State ex rel. Dolman v. Dickey et al., 280 Mo. 536, 219 S.W. 363.] However, there is an exception to the general rule. The exception is that "mandamus will lie to correct or control the action of administrative officers, bodies and other tribunals, notwithstanding that an official discretion may be reposed in them, where they have in fact refused to exercise such discretion in a lawful manner, impartially and in good faith."

Respondent concedes the general rule to be as above stated, but contends that the facts alleged in the petition for mandamus and in the alternative writ bring the case within the exception to the general rule and subjects the action of the purchasing agent in awarding the contract, to correction and control by mandamus.

The State Purchasing Agent owed a duty to the public to honestly and fairly exercise his discretion to award the contract in question to the lowest and best bidder. If he failed to lawfully perform that duty his action in the matter could be reached and controlled by mandamus. Private citizens as well as taxpayers or proper public officials, may...