The Board of Commissioners of Henry County v. Gillies

• Decision Date: 18 September 1894
• Docket Number: 16,890
• Citation: 38 N.E. 40,138 Ind. 667
• Parties: The Board of Commissioners of Henry County et al. v. Gillies
• Court: Indiana Supreme Court

38 N.E. 40

138 Ind. 667

The Board of Commissioners of Henry County et al. v. Gillies

No. 16,890

Supreme Court of Indiana

September 18, 1894

From the Henry Circuit Court.

The judgment is affirmed.

J. H Mellett and M. E. Forkner, for appellants.

D. W Chambers, for appellee.

OPINION

Howard, J.

The appellee, a citizen and taxpayer of the county of Henry filed his complaint in the court below, to have a certain contract which had been entered into between the appellant Board of Commissioners and the appellant Elliott declared void, and to have appellants and other defendants restrained from taking any action thereunder.

The judge of the Henry Circuit Court deeming himself disqualified, appointed the Honorable D. W. Comstock, Judge of the 17th Judicial Circuit of Indiana, to try the case.

From the finding of facts by the court, it appears that on December 7, 1891, being the first day of the December term, 1891, of the Board of Commissioners of Henry County, Indiana, the said board, while in regular session, accepted a bid in writing, made by the appellant Elliott, and entered into a contract with him, by the terms of which the said Elliott agreed to furnish to said county the records, blanks, and stationery of all kinds for the use of the county, for one year at rates named in said bid and contract, and also to do the public printing for the county at twenty per cent. less than the legal rate; that prior to the making of said contract no statement had been made to said board by any county officer of said county, of the probable amount and quantity of books, stationery and other articles necessary for conducting the business of his office for any determinate period, nor had said board requested such statement of any officer; nor did said board give notice in any manner that bids would be received for furnishing supplies needed for the use of the county or its officers; that on said day, and before the said commissioners had determined to enter into a contract with the appellant Elliott, they had knowledge that the appellee desired, and was ready, to file a bond to furnish said records, blanks, and stationery, and do the printing needed by said county for the year 1892, and that the firm of Burford & Co., a responsible firm doing business at Indianapolis, Indiana, also were ready, and desired, to bid to furnish the records, blanks, and stationery needed by said county for said year; that prior to the awarding of said contract, said commissioners were informed that the appellee had a bond for the faithful performance of the contract if awarded to him, and that he then and there had his said bid and bond ready to file; that with said knowledge, said board awarded said contract to appellant Elliott without examining or considering any other bid than said Elliott's; that after said board, on said day, announced to the appellee that the bid of Elliott had been accepted, and the contract awarded to him, and before the order awarding said contract had been recorded and signed on the minutes of said board, and before the appellant Elliott had been informed of the acceptance of his said bid, the appellee filed with the auditor of said county, the bid which he had informed the board he desired to file before the announcement had been made of the acceptance of the bid of Elliott, and with said bid filed a bond in the sum of two thousand dollars to secure the faithful performance of the contract for the public printing, which bond the court finds was ample to secure that part of the contract, and which was the only bond proposed to be filed by the appellee; that in said bid the appellee proposed to furnish all the records, blanks, blank books, and stationery for the use of the county that might be required during the period of one year from the acceptance of said bid, at the rates named in said bid, and also to do the public printing for the county for said year for sixty per cent. less than the bid of Elliott; that at the same date the said firm of Burford & Co. proposed in writing to furnish all blanks, blank books, and stationery necessary for the use of the several officers of said county for one year from said date for ten per cent. less than the appellant Elliott.

The bid of the appellant Elliott, and also that of the appellee, Gillies, are set out in full detail in the finding, and it appears that the prices named in appellee's bid average from twenty to sixty per cent. lower than those in Elliott's bid.

The court made further findings showing absence of collusion or fraud on the part of appellants; that the prices stated in Elliott's bid were reasonable; that Elliott and the appellee were resident newspaper publishers and were of opposite politics, Elliott being of the same politics as the members of the board; that the appellants were threatening to carry out the contract entered into, and would do so unless restrained by the court; and that appellants, in entering into said contract, did not intend to defraud the taxpayers of Henry county.

As conclusions of law, the court found that that part of the contract which provided for furnishing records, blanks and stationery was illegal and invalid, and that the appellee was entitled to have the same canceled and its performance enjoined, and that that part of the contract which provided for the public printing was legal and valid.

As the court found that the appellee proposed to do the public printing for sixty per cent. less than the bid of the appellant Elliott, it does not at first appear clear why the court concluded, as a matter of law, that the printing part of the contract was legal and valid.

There is, however, no law requiring the board of county commissioners to let the public printing to the lowest bidder. The board might, therefore, lawfully let the printing to Elliott at any price not greater than the legal rate, even though appellee offered to do it for sixty per cent. less.

Both parties, and the court also, proceeded upon the theory that the action was brought, and that all the proceedings in relation to the contract were had, under provisions of the act of...