State v. Smith
| Decision Date | 12 June 1899 |
| Citation | 57 P. 449,23 Mont. 44 |
| Parties | STATE ex rel. STATE PUB. CO. v. SMITH, Governor, et al. |
| Court | Montana Supreme Court |
Application by the state, on the relation of the State Publishing Company, against Robert B. Smith, governor, and Timothy E Collins, treasurer, for mandamus to compel them to approve a contract for the state printing claimed to have been awarded to relator by the state board of examiners. Dismissed.
This is an application by the State Publishing Company for a writ of mandate to require Robert B. Smith and Timothy E. Collins, as governor and treasurer, respectively, of the state of Montana, to approve a contract for the printing, binding, and distribution of the laws, journals, department reports, and other documents for the state of Montana, which it claims was accorded to it by the state board of examiners. The affidavit alleges that on the 28th day of November, 1898, the state board of examiners advertised for more than 20 days, in two daily papers published at the sea t of government, for proposals for furnishing and doing all printing and binding and distributing of the laws, journals, reports, and other printing and binding of all books used by any state department or officers, and did invite proposals therefor to be delivered to it on or before 12 o'clock noon of December 20, 1898, and further required each bid to be accompanied by a bond, as prescribed by law; that on December 20, 1898, upon the opening of said bids by the board of examiners, the said board found, and so declared, that the bid of the State Publishing Company was the lowest responsible and best bid for the said work; that the said board did thereupon award to it the contract for doing the said work, by means whereof then and there a contract was made between the State Publishing Company and the state of Montana for the doing of said work, upon the terms and conditions in said advertisement and bid set forth and declared; that the said Robert B. Smith and Timothy E Collins were at that time, and ever since have been respectively, the governor and treasurer of the state of Montana, and it then and there became and was the ministerial duty of them, and each of them, to approve the said contract that although the bid of the relator was $1,000 less than any other, and the said contract was further reduced to writing, and was, with the bond filed by the State Publishing Company, in fact, and in the judgment of the board of examiners, valid and correct, in substance and form, and although both the bond and contract were held to be in compliance with the requirements of section 708 of the Political Code of Montana, yet the said Robert B. Smith, as governor, and Timothy E. Collins, as treasurer, well knowing that said contract ought to be approved by them, did assume to, and did, in form, disapprove of the same; that they did this with the intent and for the purpose that the contract might be let, and the work done, by a person or corporation not in truth and fact the lowest responsible bidder; that they did not disapprove of the contract because of any defect of form in it or the bond, nor because the said board had not decided that the bid of the State Publishing Company was the lowest responsible bid, nor because the contract had not been awarded to the State Publishing Company, but that their action in withholding their approval was arbitrary, without any reason had or given, and for causes beyond their jurisdiction and authority, which was confined to an inquiry as to the form of the contract, and whether it had been let by the board of examiners in conformity with the law; that meanwhile the said Robert B. Smith, as governor, had ordered the State Publishing Company to do divers and sundry of said printing under said contract, and that the said company, at his request and the request of the board of examiners, had proceeded to do a large amount of said printing, and was proceeding to carry out the contract; that thereafter, and while the said company was engaged in carrying out the contract; the said Robert B. Smith and Timothy E. Collins proceeded to examine the same, and, without having or giving any reason, disapproved of the same as aforesaid; that Thomas S. Hogan, secretary of the state of Montana, has caused to be prepared copies of all laws and resolutions, with marginal notes, passed by the Sixth legislative assembly, and also copies of the journals kept, passed, and adopted at such session, with proper indexes of the same, as kept for the public printer, but that he will not deliver to the State Publishing Company or its agent the copies of the laws and resolutions, with proper indexes to the same; that on March 21, 1899, at the office of the secretary of state and during business hours, the State Publishing Company, by its agent, demanded of the said secretary that he deliver to it the said copies, to the end that they might be printed under said contract, but that said secretary refused to so deliver them. The affidavit further alleges that, for the reasons stated, the State Publishing Co mpany cannot proceed under its contract with profit to itself, as it might otherwise do; that it is entitled to have the contract approved, and was entitled to have it approved, on and before March 21, 1899, because such approval is specially enjoined upon the said governor and treasurer; and that it has no plain, speedy, and adequate remedy, in the ordinary course of law. Wherefore the writ is demanded, to the end that the said governor and treasurer be required to approve the contract, or to show cause why he should not. An alternative writ was issued, directed to the respondents, and requiring them to approve the contract as demanded, or to show cause before this court, on the 9th day of May, 1899, why they had not done so. The respondents moved to quash upon the following grounds: (1) That this court has no jurisdiction to issue said writ; (2) that the facts stated are not sufficient to constitute a cause of action, or to authorize the issuance of the writ, or to afford any relief to the relator in this proceeding.
Sanders & Sanders, for relator.
Carpenter & Carpenter, for respondents.
BRANTLY C.J. (after stating the facts).
The contract referred to in the affidavit was before this court for consideration in State v. Hogan, 22 Mont. 384 56 P. 818, decided on March 31st of this year. It was there held, under section 30, art. 5, of the constitution, that it is indispensable to the validity of such a contract that it be approved by the governor and state treasurer. The contention is now made by the relator that the duty of approval on the part of the governor and treasurer is purely a ministerial one, and we are asked to enforce...
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