State v. Hindson

• Decision Date: 11 January 1912
• Citation: 120 P. 485,44 Mont. 429
• Parties: STATE ex rel. STUEWE v. HINDSON et al.
• Court: Montana Supreme Court

120 P. 485

44 Mont. 429

STATE ex rel. STUEWE v. HINDSON et al.

Supreme Court of Montana

January 11, 1912

Appeal from District Court, Lewis and Clark County; Lew L. Callaway Judge.

Mandamus by the State of Montana, on the relation of William Stuewe against J. J. Hindson and others, as the Board of County Commissioners of Lewis and Clark County, and another. Judgment dismissing the proceeding, and relator appeals. Reversed and remanded.

C. A Spaulding and Homer G. Murphy, for appellant.

Albert J. Galen, Atty. Gen., and W. S. Towner, Asst. Atty. Gen., for respondents.

HOLLOWAY J.

On September 5, 1911, the board of county commissioners of Lewis and Clark county caused to be published a notice, calling for bids for the care of the poor, sick, and infirm of the county for the period of two years from October 15, 1911. The notice concluded as follows: "The right to reject any and all bids is expressly reserved." In answer to this notice, four bids were submitted, as follows: William Stuewe, $3 per capita per week; Jacob Doerr, $3.08 per capita per week; Bert Coty, $3.20 per capita per week; and William Holbrook, $3.25 per capita per week. On September 30th, after the time for presenting bids had expired, the board, acting by its commissioners Hindson and Dolliver (Commissioner Covington voting in the negative), awarded the contract to William Holbrook for two years at $3.25 per capita per week. William Stuewe, one of the unsuccessful bidders, instituted this proceeding in mandamus to compel the board to rescind and set aside the contract with Holbrook, and to award the contract to him. An alternative writ was issued, and upon the return the defendants demurred to the affidavit, and moved to quash the alternative writ. The demurrer and motion were sustained, and the proceedings dismissed. From the judgment of dismissal, the relator appealed.

There are but two questions before us for determination: (1) What is the status of the relator before the courts in this proceeding; and (2) to what extent may relief be granted? The general rules of law governing the writ of mandamus are quite well settled, and counsel for appellant and the Attorney General, appearing for the board, are in substantial agreement. Counsel for appellant in their brief epitomize the charges of fraud contained in the affidavit for the writ, as against commissioners Hindson and Dolliver, as follows: "That respondent board of county commissioners, acting by and through a majority of the members thereof, to wit, J. J. Hindson and William M. Dolliver, and overriding the vote of C. C. Covington, the other member of said board, against the same, on the 30th day of September, 1911, fraudulently, capriciously, arbitrarily, corruptly, and acting because of their interest in said contract, unlawfully assumed to award the same to the respondent William Holbrook, the highest bidder, notwithstanding said board well knew that appellant was the lowest responsible bidder therefor; that the respondent board so acted without determining or passing upon the responsibility of appellant, as such a bidder, and without affording him an opportunity to demonstrate, as he could have done, that he was in fact, and as they well knew, in every way the lowest responsible bidder; that the respondent Hindson was interested in the letting of said contract, and expected to, and would, as he had in the past, derive profit therefrom, if let to the respondent Holbrook, all of which he well knew when he voted to award the same to the latter."

The demurrer admits the facts pleaded to be true, and for the purposes of this appeal they will be treated as true.

While mandamus will not lie to control the discretion of the board, these allegations disclose that the board has never exercised its discretion with respect to the bids submitted, for the fraud vitiates the proceeding, and precludes the idea that discretion was exercised. Under such circumstances, mandamus is an available remedy to compel the board to act. State ex rel. Mitchell Furniture Co. v. Toole, 26 Mont. 22, 66 P. 496, 55 L. R. A. 644, 91 Am. St. Rep. 386.

1. If this relator showed by his affidavit that he is merely an unsuccessful bidder, the remedy by mandamus would not be available to him. There was not any contractual relation existing between him and the board, and his status as an unsuccessful bidder does not make him a party beneficially interested. In general terms, it is said that a contract is consummated by an offer from one party and its acceptance by another. The advertisement for bids is not an offer which by acceptance constitutes a contract. It is merely an invitation to every bidder to make an offer, which the board may accept, and a contract result; but a party whose offer is not accepted cannot complain or invoke the aid of the courts to compel the board to accept his offer. Anderson v. Board, 122 Mo. 61, 27 S.W. 610, 26 L. R. A. 707.

In Commonwealth ex rel. Snyder & Co. v. Mitchell et al., 82 Pa. 343, a case similar in the facts to the one before us is presented, except that in the Pennsylvania case there were no charges of fraud. In answer to a notice by the city of Pittsburgh, calling for bids for certain public work, Snyder & Co., copartners, and Bush & Co., each submitted bids. The bid of Snyder & Co. was lower than the other, but the contract was awarded to Bush & Co. Snyder & Co. then brought proceedings in mandamus to compel the city authorities to let the contract to them, upon the ground that they were the lowest responsible bidders. In denying the relief sought, the court said: "It is a well-established rule that he who sues for the writ of mandamus must have some well-defined right to enforce, which is specific, complete, and legal, and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large. Heffner v. Commonwealth [28 Pa.] 108. But Snyder & Co. had no such right as above stated. By their bid, they proposed to contract for certain work; that bid was not accepted. It was a mere proposal that bound neither party, and as it never was consummated by a contract the city acquired no right against the relators, nor they against the city. Snyder & Co. are wanting in a specific remedy only because they have failed to establish a legal right. The injury, if any, resulting from the rejection of their bid fell upon the public, and not upon them personally."

The provision of law for letting contracts of this character to the lowest bidder is for the benefit of the public, and does not confer any right upon the lowest bidder as such. State v. Board of Education, 24 Wis. 683; Kelly v. Chicago, 62 Ill. 279.

But this relator goes further, and alleges that he is a resident taxpayer of Lewis and Clark county, and sets forth the facts which show that if the contract with Holbrook is carried out the taxpayers of the county will suffer financial loss. Under such circumstances, the authorities are quite uniform in holding that he is a party beneficially interested, and may invoke the aid of a court by mandamus; but in doing so he occupies the same position as would any other taxpayer who had not bid for the contract. In other words, the only standing which Stuewe has in the courts in this proceeding is as a taxpayer, and not as an unsuccessful bidder.

We agree with counsel for appellant that under the showing made here this board has never acted upon the bids which were submitted to it, since its purported action was entirely vitiated by the fraud which is charged and admitted; in other words, the board is now in precisely the same position it was in on September 30th, when it met to consider the bids, and before it attempted to act.

We agree, further, with counsel that the duty devolves upon the board to act; that the duty is absolute; and that, having failed to act, mandamus lies to compel action. And this brings us to a consideration of the second question.

2. What shall the board be required to do? And in the answer to this inquiry will also be found the answer to the other one, To what extent may relief be granted at the suit of a taxpayer? Mandamus lies to compel the performance of an act which the law specifically enjoins as a duty resulting from an office. Rev. Codes, § 7214. Therefore the character of the duty measures the extent of the relief which can be afforded by mandamus. That the law imposes upon the board the duty to exercise its best judgment or honest discretion with respect to the bids submitted is conceded by counsel for both parties. But counsel for appellant insist that, having exercised an honest discretion, the duty to let the contract to the lowest responsible bidder is absolute. This implies, of course, that the board cannot reject all the bids offered. There is a serious question whether, by responding to a notice which reserved the right to reject all bids, this relator is not precluded from denying such authority in the board. In speaking upon a similar state of facts, in People v. Supervisors of Kings County, 42 Hun (N. Y.) 456, the Supreme Court of New York said: "The relator having made his bids under such advertisement, he cannot complain that they [the supervisors] exercised the right he so conceded to them. It was the plain condition of his bid that the board might reject it, and having given his assent to such rejection he cannot challenge their power to exercise the right." In other words, when Stuewe submitted his bid, he agreed that the board might reject it, for cause at least.

But has the board the authority to reject all bids? The general powers of the board of county commissioners are enumerated in section 2894 of the Revised Codes. After naming 26 separate powers,...