State ex rel. Union Fuel Company v. City of Lincoln

• Decision Date: 22 April 1903
• Docket Number: 12,583
• Parties: STATE OF NEBRASKA, EX REL. UNION FUEL COMPANY, v. CITY OF LINCOLN ET AL
• Court: Nebraska Supreme Court

94 N.W. 719

68 Neb. 597

STATE OF NEBRASKA, EX REL. UNION FUEL COMPANY, v. CITY OF LINCOLN ET AL

No. 12,583

Supreme Court of Nebraska

April 22, 1903

ERROR to the district court for Lancaster county: LINCOLN FROST DISTRICT JUDGE. Affirmed.

AFFIRMED.

Lionel C. Burr and Elmer E. Spencer, for plaintiff in error.

Edmund C. Strode and D. J. Flaherty, contra.

KIRKPATRICK C. HASTINGS and LOBINGIER, CC., concur.

OPINION

KIRKPATRICK, C.

This is an application for a writ of mandamus addressed to the district court for Lancaster county by relator, the Union Fuel Company, seeking to compel the city council of the city of Lincoln to award it a contract to furnish for the use of the city 3,500 tons of Rich Hill mixture nut coal, or so much thereof as might be needed at $ 2.10 per ton. The trial court denied relator's application.

The basis of relator's contention is that it was the lowest and best bidder, and that, this fact being established, it was mandatory upon the city council, under the statute, to award it the contract. There were only two bids for nut mixture coal, namely, that of the Whitebreast Coal Company upon Cleveland nut mixture, at $ 2.15, and that of relator upon Rich Hill, at $ 2.10. In order that contention of relator may be clearly apprehended, it is necessary to quote, in part, section 120, chapter 13, article 1, Compiled Statutes of Nebraska, 1901 (Annotated Statutes, 7819):

"It shall be the duty of the city clerk, on or before the first day of June, annually, to prepare separate estimates of all kinds of supplies, personal property and material, required for the use of the city during the following fiscal year, and during the first week in June he shall publish a brief advertisement in one newspaper published in the city, stating the probable amount and kind of supplies, personal property and material required by such city during the following fiscal year and inviting bids therefor which bids shall be filed with said clerk on or before the first day of August. The council shall on or before the tenth day of August, succeeding such advertisement, open said bids and accept the bid or bids of the lowest and competent bidder, * * *. The city council shall at its first meeting in September award a contract or contracts for such supplies, personal property and material to the best and lowest bidder or bidders competent under the statute."

Pursuant to this statute the city clerk published the following notice:

"Notice for Bids. Sealed bids will be received at the city clerk's office, Lincoln, Nebraska, for personal property, material and supplies for the water department of the city of Lincoln for the year commencing September 7, 1901, as per schedule on file in the city clerk's office. All bids must be filed with the clerk on or before the first day of August, 1901. The city reserves the right to reject any and all bids. (Signed.) Thomas Pratt, City Clerk."

As we apprehend contention of counsel for relator, it is that under the statute quoted the city council has no discretion, but the duty devolves imperatively upon it to award the contract to the lowest responsible bidder. The respondents contend that the city council is vested with discretion in the premises, and that under the evidence upon which the trial court acted, it is shown that that body exercised the discretion wisely and honestly, and for the best interests of the city.

We do not understand that any dispute arises in this case as to the law, settled by numerous decisions of this court, that mandamus will not lie to govern the conduct of an inferior tribunal or board in any action wherein judgment or discretion is required to be exercised. We regard it as elementary that where mandamus is sought, relator must show clearly and conclusively that he is entitled under the law to the particular act or thing desired, and that the respondent is legally obligated to give him what he asks. State v. Kendall, 15 Neb. 262, 18 N.W. 85; State v. Wenzel, 55 Neb. 210, 75 N.W. 579; Laflin v. State, 49 Neb. 614, 68 N.W. 1022.

The crucial question herein, accordingly, is whether the city council in awarding the contract exercises discretionary power, or acts wholly ministerially. The section just quoted says that: "The council shall * * * accept the bid * * * of the lowest and competent bidder"; and again: "The city council shall * * * award a contract * * * for such supplies * * * to the best and lowest bidder." The fundamental principle of statutory construction is ascertainment of...