State v. Toole
| Citation | 66 P. 496,26 Mont. 22 |
| Parties | STATE ex rel. ROBERT MITCHELL FURNITURE CO. v. TOOLE, Governor, et al. |
| Decision Date | 28 October 1901 |
| Court | United States State Supreme Court of Montana |
Mandamus by the state, on the relation of the Robert Mitchell Furniture Company, to Joseph K. Toole, governor, and others constituting the state furnishing board, to compel respondents to sign a formal contract for the furnishing of supplies to the state by relator. There was a demurrer to the petition and a motion to quash the writ,which were overruled and answers and a reply were then filed. Alternative writ quashed, and proceedings dismissed.
This is an application by the plaintiff, the Robert Mitchell Furniture Company, for a writ of mandate commanding the defendants to sign a certain alleged contract. An alternative writ was issued. A demurrer to the petition and a motion to quash the writ were overruled and denied pro forma. Answers and a reply were then filed. Upon the issues thus framed evidence was taken. So far as need be stated, the facts are these: The defendants Toole, Donovan, and Hays are, and since January 7, 1901, have been, respectively, governor, attorney general, and secretary of state of the state of Montana,and as such have constituted, and do now constitute, the state board of examiners and ex officio furnishing board. One of the duties of the furnishing board is to provide furniture and supplies for the state capital, and to that end to contract with the lowest responsible bidder therefor. On the 20th day of May, 1901, the board directed that an advertisement be inserted in the Helena Independent, a daily newspaper printed at the seat of government of the state, and in two newspapers printed and published without the state for sealed proposals to furnish certain supplies and furniture for the state capitol. The advertisement ran for 20 days in the Helena Independent and in the other newspapers designated by the board, but it was not inserted in any newspaper printed in the state of Montana except the Independent. Before the publication of the advertisement, the board had awarded to the owner of the Helena Independent a contract to do the printing for the state, which contract was in existence while the advertisement appeared in that newspaper. On the 1st day of August, 1901, the board opened and compared the proposals received, there being six bidders. Among the proposals was one from the plaintiff, offering to furnish the supplies called for in the advertisement at a stated price. On August 2d, 3d, and 5th the board further discussed and considered the several proposals, and on the 6th day of August, by unanimous vote, awarded the contract to the plaintiff for the sum of $35,781 upon the amended proposal, schedule, and specifications submitted by the plaintiff, and notified the company of the acceptance of its offer. The attorney general was directed by the board to prepare a formal contract conformable to the agreement resulting from the acceptance of the bid. This he did, and it was signed by the plaintiff, but not by the board or its members. The bid of the plaintiff was not accompanied by any bond. At some time between the 10th and 23rd of August the plaintiff delivered to the attorney general its bond bearing date August 10th, in the penal sum of $18,000, payable to the state furnishing board of the state of Montana. This bond was never presented to the board. A few days prior to the 23d of August the members of the board received from certain organizations, commonly called "labor unions," protests against the signing of the contract theretofore made with the plaintiff, the protests asserting hostility on the part of the plaintiff towards labor organizations, and that it employed persons who were not members of unions. A meeting was called for August 23d for the sole purpose of investigation and taking action upon these protests. At the meeting one McDonald, president of the union known as the "Western Labor Union," presented the protests and evidence in support of the so called "charges," and a representative of the plaintiff appeared in its behalf. Upon consideration of the "charges" and the purported evidence in support of them, the board formally reconsidered its action in awarding the contract to the plaintiff, the governor voting in the negative. It was then moved that the contract be canceled, which motion was carried against the negative vote of the governor. The following is a copy of the minutes of that meeting: At this meeting the governor inquired where the bond was, and the attorney general answered that he had it in his office, whereupon the governor inquired whether there was any objection on account of the bond, and whether there wereany objections other than the one presented to the board by the labor unions, and was informed, that there were none. As to which member of the board informed the governor that there was no objection to the contract save the one in respect of union labor is not clear, for the governor, after testifying that he made inquiries at that meeting of the board whether there was any other reason, and was told that there was not, testified: "I will not say positively that you [the attorney general] said that there were no other reasons or objections to that bid, but you made no objection on account of the bond. % y(3) 5C There was no other reason assigned, or suggested, passed upon, or determined by the board." The secretary of state testified that the only reason why he voted to rescind the contract was because of the matter set out in the resolution. No reason was assigned, suggested, discussed, passed upon or considered by the board other than the one set forth in the resolution. At the time of the rescission or cancellation of the contract the attorney general knew that the advertisement had not been printed in any newspaper in Montana except the Helena Independent, and had actual knowledge of the provision of section 705 of the Political Code which makes it the duty of the board to advertise for 20 days in two daily newspapers printed in the state. On the 28th day of August, 1901, this proceeding was instituted, the plaintiff asking that the defendants be required to sign and deliver the formal contract prepared by the attorney general, or one in substance similar thereto. Thereafter, and on the 18th day of October, a bond in the penal sum of $75,000, duly executed by the plaintiff and a surety company, conditioned for the faithful performance of the contract, was delivered to the secretary of state, but no action thereon was taken by the board.
Toole & Bach, for relator.
Jas. Donovan, for respondents.
PIGOTT J. (after stating the facts).
Many questions have been argued, which we need not decide. For instance, we find it unnecessary to determine whether the furnishing of a bond in conformity with the provisions of section 708 of the Political Code is always a prerequisite to a valid contract with the board; or to determine the kindred question whether the board might waive or excuse the failure of the plaintiff to present a bond with its bid, and, if it could, whether it did so; and also the question whether the plaintiff followed the requirement of the latter sentence of section 706 of the Political Code, providing that "a sample and minute description of every article must accompany and be deposited with each proposal." For the purposes of this proceeding we assume, but do not decide, that these questions and all others not specially discussed should be solved in plaintiff's favor. So...
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