State ex rel. Printing-Litho, Inc. v. Wilson

• Decision Date: 04 December 1962
• Docket Number: No. 12188,INC,PRINTING-LITH,12188
• Court: West Virginia Supreme Court
• Parties: STATE ex rel., a West Virginia Corp. v. Curtis S. WILSON, Director of Purchases of State of West Virginia.

Page 449

128 S.E.2d 449

147 W.Va. 415

STATE ex rel. PRINTING-LITHO, INC., a West Virginia Corp. v. Curtis S. WILSON, Director of Purchases of State of West Virginia.

No. 12188.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1962.

Decided Nov. 20, 1962.

Dissenting Opinion Dec. 4, 1962.

Syllabus by the Court

1. An action or suit instituted by a person entitled to the performance of a duty against the official charged with the performance of that duty is not a suit against the state within the prohibition of Section 35, Article VI of the Constitution of this State.

2. A writ of mandamus will not issue to control the action of an officer or board vested with discretion in the absence of fraud, collusion, or a palpable abuse of such discretion.

William L. Jacobs, Parkersburg, for relator.

C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., Charleston, for respondent.

BROWNING, Judge.

In this original proceeding in mandamus, relator, Printing-Litho, Inc., seeks to require the respondent, Curtis S. Wilson, Director of Purchases of the State of West Virginia, to honor the low bid submitted by the relator with regard to certain miscellaneous printing and binding for the State of West Virginia for the years 1962-1964, hereinafter designated as 'Contract No. 3'.

The petition identifies the parties an alleges: the solicitation by the respondent, pursuant to statute, of sealed bids for printing 'Contract No. 3'; the timely submission by the relator, with bond in the amount of $50,000.00, of a bid of $62,049.50, which bid was the lowest of the five firms competing for the work, the next lowest bid being $113,316.20; that relator is the lowest responsible bidder as defined by statute, has under lease adequate facilities to fulfill all requirements and the United States Government is presently employing such facilities on similar contracts for quantities far in excess of those required by the state; the President and General Manager of relator have had more than fifteen years experience with the same printing contract in previous years and are thoroughly familiar with the quality, quantity and service required by the state; the relator is ready to give a satisfactory surety bond for the full amount of the bid guaranteeing faithful performance and compliance with all terms, conditions and requirements of said contract; and, despite the fact that relator is the lowest responsible bidder, respondent has rejected relator's bid.

A rule to show cause why the writ should not issue as prayed for was issued by this Court on August 21, 1962, returnable September 5, 1962, at which time respondent appeared and answered, admitting all of the factual allegations of the petition but averring that relator 'does not have the qualifications necessary to perform the work required under its bid and was refused the contract because its financial statements do not show that it is a responsible bidder and able to perform the contract as set out by the State of West Virginia.'

Discovery depositions of Mr. C. F. Boyd, President of Printing-Litho, Inc., and Mr. F. R. Clark, were taken by agreement of counsel.

Mr. Boyd testified, in substance, that: Printing-Litho, Inc., was incorporated on May 24, 1962, with an authorized capitalization of $2,000,000; the present operating capital is approximately $4,000 of which he has contributed $1,800; the sale of stock to the public has not yet been authorized by the Securities Commission of the State; Printing-Litho, Inc., has leased the entire facilities of the former Clark Printing Company of Elkins with an option to purchase at the expiration of the lease, and has obtained oral agreements with two other printing plants, one in Elkins and one in Philippi, 26 miles distant, the owners of which plants are shareholders of Printing-Litho, Inc., to use their facilities; the facilities under lease would be insufficient to perform the contract if the equipment at the other plants in Elkins and Philippi became unavailable, however, an option to purchase for $3,000.00 additional equipment sufficient to perform the contract, has been obtained; both he and the production manager, Mr. Dobreff, have had at least 15 years experience in the performance of state contracts similar to 'Contract No. 3'; Printing-Litho, Inc., employs 6 production workers, formerly with Clark Printing Company, and, though the plant is not unionized, the wage scale paid to these employees is at least equal to the prevailing wage in the area; creditors of Clark Printing Company have filed suit to repossess an item of the equipment Printing-Litho, Inc., has under lease; Printing-Litho, Inc., has performed, and is presently performing, similar contract printing work for the United States Government; the difference of $51,266.70 between the bid of Printing-Litho, Inc., and the next lowest bidder, is largely due to production costs; and, Printing-Litho, Inc., has received assurance from the bonding company which posted the $50,000 'bid' bond that it is willing to give whatever 'performance' bond is required in the execution of the contract. He also stated that Printing-Litho, Inc., did not have at the time of his deposition, $3,000.00 with which to exercise the option for additional equipment.

Mr. Clark, called as a witness for respondent, testified to the effect that: he was formerly engaged in the printing business as Clark Printing Company, however, the great proportion of the assets of said business are privately owned by his wife; neither he nor his wife have any interest in Printing-Litho, Inc., except as lessors and an option to purchase shares of stock within six years; Clark Printing Company has several outstanding judgments against it; three attempts were made to unionize the plant which contributed to Clark Printing's financial difficulties, however, Printing-Litho, Inc., is presently paying 'considerably higher wages than I ever intended to, which is greater than the prevailing wages in the area'; Printing-Litho, Inc., is paying as rental $1,500 a month, which is sufficient to defray the payments on all equipment (five pieces) under conditional sales contracts including that which was the subject of a suit for repossession and, in the event of his default, Printing-Litho, Inc., has an option under the lease to make such payments; and, all other equipment (sixteen pieces) are owned outright by Mrs. Clark.

Chapter 5A, Article 3, of the Code, as amended, after directing the director of purchasing, inter alia, to solicit sealed bids for the purchase of commodities and printing that is estimated to exceed two thousand dollars, provides in Section 14 that:

'Bids shall be based on standard specifications * * *. All open market orders, purchases based on advertised bid requests, or contracts made by the director or by a state department shall be awarded to the lowest responsible bidder, taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the state government, and the delivery terms. Any or all bids may be rejected. * * *'

Section 4 of the article commands the director to 'adopt and amend rules and regulations to:'

* * *

* * *

'(6) Prescribe the amount of deposit or bond to be submitted with a bid on contracts and the amount of deposit or bond to be given for the faithful performance of a contract; * * *.'

In the case of Butler v. Printing Commissioners, 68 W.Va. 493, 70 S.E. 119, 38 L.R.A.,N.S., 653, an issue similar to that in the instant proceeding was presented to this Court, the distinction being that in that case the contract had already been awarded to another bidder. The syllabus in that case is as follows:

'1. A mandamus will not go to a bidder for state binding to compel the commissioners of printing to award him the contract for such binding after they have awarded it to another bidder, though the former was the lower bidder; the function of the board of commissioners involving discretion.

'2. Quaere: Is this a suit against the state?'

To answer this quaere, this Court has since had many occasions to interpret the provisions of Section 35, Article VI of the Constitution which reads: 'The State of West Virginia shall never be made defendant in any court of law or equity, except the State of West Virginia, including any subdivision thereof, or any municipality therein, or any officer, agent, or employee thereof, may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.' It was held in Mahone v. State Road Commission, 99 W.Va. 397, 129 S.E. 320, Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680, 191 S.E. 47 and Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284, that the immunity of the state in a court of law or equity with the exception therein provided applies as well to the agencies and boards created by the Constitution and by valid acts of the legislature. However, this Court has held that where an agent of the state acts unlawfully he, individually, is not protected by this section of the Constitution. Downs v. Lazzelle, 102 W.Va. 663, 136 S.E. 195. It has also held that this section does not apply where the duty involved is purely a ministerial one. In State ex rel. W. H. Wheeler & Co. v. Shawkey, 80 W.Va. 638, 93 S.E. 759, a writ of mandamus issued against members of the Board of Public Works directing them to perform certain acts which the Court held to be purely ministerial duties. See also Fidelity, etc., Co. v. Shaid, 103 W.Va. 432, 137 S.E. 878, and cases there cited. Likewise, the Court has held that mandamus will lie to compel the State Road Commissioner in a proper case to institute condemnation proceedings against a landowner after the completion of a public highway. Taylor v. Baltimore & Ohio Railway Co., 138 W.Va. 313, 75 S.E.2d 858.

The principle to be derived from these cases is...