State v. District Court of Third Judicial Dist. In and For Powell County
| Decision Date | 08 March 1927 |
| Docket Number | 6107. |
| Parties | STATE ex rel. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR POWELL COUNTY et al. LARSEN |
| Court | Montana Supreme Court |
Application by Alexander T. Larsen for a writ of supervisory control requiring the District Court of the Third Judicial District in and for Powell County and George B. Winston, the Judge thereof, to issue an alternative writ of mandate to the trustees of School District No. 20, Powell County. Proceeding dismissed.
W. E Keeley, of Deer Lodge, for relator.
S. P Wilson and E. M. Keeley, both of Deer Lodge, for respondents.
On January 24, 1927, Alexander T. Larsen, representing himself to be the duly appointed, acting, and qualified executor (sic) of the estate of Anna G. Hansen, deceased, applied to the district court of Powell county for the issuance of an alternative writ of mandate to be directed to the trustees of school district No. 20, Powell county, commanding them to perform certain acts which will be mentioned later. In his application he advised the court that the estate of which he is the representative is a taxpayer within the school district, assessed for taxes for the upkeep, maintenance, and building of schools and schoolhouses therein, and financially affected and injured by the acts of the trustees which are complained of.
He averred that upon the 18th of November, 1926, the clerk of the school district, without authority from the board of trustees, caused to be published in a newspaper of the county a notice that the board would receive bids for the purpose of erecting a schoolhouse at Garrison under the specifications of plan B-2 of the Montana state board of health, bids to be opened December 3, 1926, at 2 p. m., at the office of the clerk of the school district at Garrison; that prior to the hour fixed in the notice, several bids were delivered to the clerk, among them the bids of J. D. Mizner and C. L. Anderson; that the board did not meet at the time fixed, but upon that evening at 6:50 p. m. two members of the board met at the residence of one of them and attempted to accept the bid of Anderson and to enter into a contract with him; that on the 18th of December, without any notice of a meeting as required by law, the three trustees, together with the clerk and the county attorney of Powell county, convened at a meeting without knowledge of any other persons, and rescinded and rejected all actions taken by a majority of the board on December 3d, and rescinded the contract entered into upon that date with Anderson, and proceeded to reopen and reconsider all of the bids which had been presented on or prior to December 3d, and, without readvertising for bids attempted to accept the bid of Anderson for the building of the schoolhouse; that Anderson's bid was not in accordance with the published notice for bids, but "was in accordance with plans and specifications apparently made by himself, and contrary and different from the plans and specifications set out in the published notice for bids"; that the bid of Mizner was the lowest bid offered and more than $80 lower than that of Anderson; that the action of the trustees in accepting Anderson's bid or in attempting to accept it "constituted and was a private contract between said trustees and said C. L. Anderson, and contrary to law." It was further alleged that the notice, the action of the trustees in rejecting all bids and thereafter accepting a bid without readvertising for bids, and the action of the trustees in attempting to make a private contract with Anderson, all were void.
Relator therefore, prayed that an alternative writ issue commanding the trustees to convene as a board and to reject all bids offered pursuant to the notice and to cancel the contract between them and Anderson, for the reason that said contract in effect was a private contract, and to readvertise as provided by law for bids for the building of the schoolhouse, or to show cause before the court why they should not do so. Upon consideration, the court refused to issue the alternative writ of mandate. The relator then made application to this court for a writ of supervisory control to be directed to the district court, requiring it to issue the writ prayed for, or to show cause why it should not do so. Upon this application an order to show cause was issued. This has been met by a motion to quash which challenges the legal sufficiency of the application, and also by a return which sets forth the reasons why the court refused to issue the alternative writ asked for. Among other recitations, the respondents allege that on the 13th day of December, 1926, in a similar proceeding, upon the application of two taxpayers of the district, the district court issued an alternative writ of mandate directed to the trustees of the school district, and in due time a hearing thereon was had; in that proceeding the alleged illegality of the identical notice for bids was in issue, and testimony in reference to the publication and validity of the notice was offered in evidence; all the facts and circumstances relative to the making of the contract by the board of school trustees were placed in evidence and submitted to the court for decision; and after consideration the court, upon December 24, 1926, found the petition for a writ of mandate without merit and dismissed the action; that by reason of the pendency of the former proceeding the court had full knowledge of the facts and circumstances set forth in relator's petition filed January 24, 1927, and in the exercise of its discretion the court decided Larsen's petition to be without merit; that Larsen's petition was not made by a party beneficially interested, and not in good faith; that the issuance of a writ would not promote substantial justice; that the applicant would not suffer any injury,...
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