State ex rel. Woodruff-Dunlap Printing Company v. Cornell

• Decision Date: 15 June 1897
• Docket Number: 9216
• Citation: 71 N.W. 961,52 Neb. 25
• Parties: STATE OF NEBRASKA, EX REL. WOODRUFF-DUNLAP PRINTING COMPANY, v. JOHN F. CORNELL ET AL
• Court: Nebraska Supreme Court

71 N.W. 961

52 Neb. 25

STATE OF NEBRASKA, EX REL. WOODRUFF-DUNLAP PRINTING COMPANY, v. JOHN F. CORNELL ET AL

No. 9216

Supreme Court of Nebraska

June 15, 1897

ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Reversed.

REVERSED AND REMANDED.

J. H Broady, for plaintiff in error.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, contra.

OPINION

HARRISON, J.

The relator herein filed in the district court of Lancaster county an application for a writ of mandamus to issue against John F. Cornell, the auditor of public accounts, John B. Meserve, state treasurer, and William F. Porter, secretary of state, who by law constitute the state printing board, to compel such board to award and cause to be let to the relator a contract to do certain of the public printing. An alternative writ was issued, in which appeared certain formal statements, to which we need devote no space or attention; also, that prior to December, 1896, and up to January 7, 1897, Eugene Moore was auditor of public accounts, Joseph S. Bartley was state treasurer, and Joel A. Piper secretary of state, and collectively the state printing board, and as such board advertised for proposals or bids for doing public printing, separating the work to be done, arranging one portion of it under what was designated in the advertisement "Class One," and the other as "Class Three;" that in the advertisement the board assumed to reserve the right to award contracts for the work to be done under Class Three in or on as many separate contracts as it should deem best; that the relator made its proposal or bid for the performance of the work included under Class Three, and accompanied its bid with good and sufficient bond conditioned as required by law, and in the sum of $ 5,000; that the bids offered were duly considered by the printing board, and it was determined that the relator's bid was the lowest and best bid for the work included in Class Three and the relator a responsible bidder. The printing for the doing of which proposals had been asked, arranged and classed as three, was of reports of state officers, and it was further pleaded that for the printing of six of said reports the bid of relator was the lowest; that for six of them the bid of Jacob North & Co. was the lowest, and for printing of four of them the bid of the State Journal Company was the lowest, but in the aggregate, or for printing the whole number, the proposal of relator was the lowest; and further:

"The said printing board, at the time provided by law, in the manner provided by law, considered the relator's bid as aforesaid. At the time they so considered it the relator tendered to the said board its bond to the state in the sum of not less than twice the amount of the contract price of the contract for the work so bid for, which he claims should be awarded to him, and with more than two good and sufficient sureties approved by said board, conditioned for the faithful performance of said contract, which bond was according to law in all respects and was received and kept and is still retained by said board, and no objection has ever been made to the form or the sufficiency of the sureties of the said bond. The relator thereupon demanded of the said board the awarding of a contract and the execution thereof in writing in due form for the printing of all the said sixteen reports, but the said board refused, solely on the ground that they contended that the relator was only entitled to such contract for the said six reports on which its bid was the lowest, and that Jacob North & Co. were entitled to another contract for the printing of the said six reports on which its bid was the lowest, and that the State Journal Company was entitled to the contract for the printing of the said four reports on which its bid was the lowest. The said board neither made nor have any other objection to the relator's demand than as aforesaid. They only objected to the demand because they desired that there should be three contracts for the work covered by said bid, viz., one to relator, one to Jacob North & Co., and one to the State Journal Company. The said board still insists upon said objections, and still refuses to award the contract for the whole of said work to the relator, until the said Moore, Piper, and Bartley were succeeded in office as the said printing board on the 7th day of January, 1897, when the said Cornell succeeded the said Moore as auditor of public accounts, and the defendant Meserve succeeded the said Bartley as treasurer, and the defendant Porter succeeded the said Piper as secretary of state, and thereby the defendants became and constituted the state printing board of Nebraska, as the successors to the said Moore, Bartley, and Piper, and that they have remained such state printing board ever since, and are such now. Immediately after the defendants became the state printing board the relator saw a majority of them, of whom he demanded the awarding of a contract according to its bid above given, and the execution of a written contract accordingly. The majority of the members of the new board conceded its right to a contract according to law, according to its request, and for a time satisfied him that the contract would be awarded to him and executed accordingly. Thereupon the relator delivered to the defendant Porter, as the custodian of the records of the said board, its bond, duly executed according to law, with good surety, for the faithful performance of the said contract according to its bid, hereinbefore more particularly mentioned, and the board accepted it without objection and has retained it ever since. Thereupon the relator concluded that the contract would be awarded to him and proceeded to get ready to do the work, and, pursuant to talks with members of the board, did actually commence upon the work thereof, and on good faith that the contract would in the regular order of business be executed. The relator was informed by the printing board that they would get the attorney general to draw the contract in writing, and notify the relator when it was ready for execution. In which assurance the relator acted until about the last of January, 1897, when the defendants, as the state printing board, met and decided that they had no jurisdiction to act in the matter, because of what the board had done during the incumbency of their predecessors, and solely upon that ground, that they had no jurisdiction to act, conceding the responsibility of the relator and that he was a good and lawful bidder, declined to take any action in the matter, thereby leaving the relator without any remedy except in the courts, and therefore refused to enter into contract with relator for said work, as relator then and there demanded according to its bid; but, on the other hand, the said printing board considered that they are bound by the action of the former board to divide up the said work into three contracts, according to the plan of the former action of the board, which they propose to do and will do if not controlled by the action of the courts. With no former knowledge on that subject, it was then ascertained that the said board of printing, before the defendants were installed in office, had entered upon the minutes of their record that they awarded three different contracts for the said work, part to relator, part to Jacob North & Co., and part to the State Journal Company, according to their theory and contention as hereinbefore stated. But the said printing board has all the time since then, and up to the present time, declined and refused to make written contracts, and the said board has entered into no writings with any one, although the said bids all contemplated writings, and such written contracts are necessary to consummate the awarding thereof. There is no consummated contract yet with any one for any part of the work covered by the bids hereinbefore described."

To the writ the board filed an answer, in which it admitted the formal allegations of the writ and the allegations in regard to the advertisement for bids, the bidding, and that relator's bid was accompanied by its bond in the sum of $ 5,000; also that the bids of the State Journal Company, Jacob North & Co., and the relator were as stated in the writ, and were all determined by the printing board to be unobjectionable in form and substance, and that an award was made to each of a portion of the printing included in Class Three, as more fully shown by a copy of the record of proceedings in this regard of the printing board, of date December 8, 1896, which copy was as an exhibit attached to and made a part of the answer. It was also admitted that the respondents had declined as a board to take any action in the matter, and refused to order a contract to be entered into with relator for the printing of all of said reports. There was a denial that the bid of relator was determined by the board to be the lowest and best for the work included in Class Three; also a denial of the conversations and transactions alleged to have occurred between the printing board and the relator prior to January 7, 1897. It was affirmatively alleged in the answer that the board was ready and willing to enter into a contract with relator for the printing of the six reports for which its bid was and had been declared the lowest and best. The further allegations in the answer were as follows:

"Further answering said relator's petition, these respondents show to the court that on the day of December, 1896, an action was commenced in the supreme court of the state of Nebraska entitled 'The State of Nebraska, ex rel. The Woodruff-Dunlap Printing Co., v. Joseph S. Bartley, State Treasurer, Eugene Moore, Auditor...