The Tribune Printing & Binding Co. v. Barnes

• Decision Date: 31 May 1898
• Citation: 75 N.W. 904,7 N.D. 591
• Court: North Dakota Supreme Court

75 N.W. 904

7 N.D. 591

THE TRIBUNE PRINTING & BINDING CO. v. O. G. BARNES, et al

Supreme Court of North Dakota

May 31, 1898

Appeal from District Court, Cass County; Pollock, J.

Application for writ of mandamus by S. F. Knight and H. Crawford, doing business as the Tribune Printing & Binding Company, against O. G. Barnes and others, as board of county commissioners of Cass County. Application dismissed, and plaintiffs appeal.

Affirmed.

J. W Tilly, for appellants.

Fred B Morrill, State's Atty., for respondents.

OPINION

WALLIN, J.

In this proceeding, the plaintiffs applied to the District Court for peremptory writ of mandamus, commanding the defendants who are the commissioners of Cass County, to recognize and consider a certain bid for county supplies, which was made by the plaintiffs in response to a published proposal for bids theretofore made by the defendants. Said proposal for bids so far as the same is material, was as follows: "Proposal for Supplies. Office of the County Auditor, Fargo, Cass County, N.D. Sealed proposals will be received at this office until 12 o'clock noon, May 3, 1898, for furnishing Cass County with * * * blank books and bindery work, printed blanks, and printed stationery. No bids from binderies or printing offices whose main offices are outside the State of North Dakota will be entertained. * * * The right to reject any or all bids is reserved by said board." Responding to this published notice, the plaintiffs filed with the county auditor their bid, which is entitled "Bid of Tribune Printing & Binding Co.," and which embraces a list of articles which are generally known as county records and office supplies of printing matter, including bank records, printed records, assessor's books, tax lists, etc. These articles are chiefly, if not wholly, of a kind such as are produced in printing offices, and can only be made by the use of printing machinery. No point is made either in the record, or in the arguments of counsel, to the effect that the bid of the plaintiffs embraces any article which is not the product of the printer's art. The plaintiff's bid was neither considered nor recognized by the defendants, whereupon the plaintiff's made application for the writ of mandamus. The affidavit, which is the basis of the appeal, states that said firm of S. F. Knight and H. Crawford as co-partners, as the Tribune Printing & Binding Company, and have their principal place of business in Minneapolis, State of Minnesota; that their business is that of making and selling legal blanks, blank books, and other county supplies and stationery, and making contracts with counties to furnish and sell them such blanks, blank books, stationery, and supplies as they may require under the law. The affidavit further alleged, in substance, that the defendants, pursuant to the requirement contained in section 1925 of the Revised Codes, published said proposal for bids for county supplies, and that in response thereto, the plaintiffs, in due time and in the proper manner, made and filed its said bid with the county auditor for said county, and that "on the 5th day of May, 1898, they proceeded to, and did, open and consider certain bids, made and filed by other persons and firms, for the furnishing of said articles, goods, and supplies named in said notice, but refused to recognize and consider complainants' (the plaintiffs herein) bid, although affiant then and there openly demanded of said commissioners that they recognize and consider his firm's bid; that affiant verily believes that his firm's bid was and is the lowest bid filed, and affiant says that his said firm is wholly responsible, and could and would give to said Cass County a good and sufficient bond to fulfill the contract if let to them on their bid"; and that plaintiffs have complied with all the requirements of the law in making and filing said bid. Upon the return of an order to show cause, which order was based on said affidavit, the defendants filed their answer to said affidavit, which answer among other things, stated as follows: "That said complainants have their principal place of business in the City of Minneapolis and State of Minnesota, and said S. F. Knight so stated to these defendants, the board of county commissioners, at the time of the opening of said bids, that if said bid of complainants was accepted, and the contract for the work specified therein was awarded to complainants, said work would be done outside of the State of North Dakota, and not within the State of North Dakota; that the bid as called for and the contract to be awarded under said bid is for county printing, and cannot, under the laws of this state, to-wit, under section 1807 of the Revised Codes of 1895, be done out of the State of North Dakota; that for that reason said bid was rejected and refused to be considered by defendants as a board of county commissioners, and the certified check attached to said bid was returned to complainants, and all other bids as called for under the notice were rejected; that the bid of the complainants was rejected by defendants, as county commissioners of Cass County, for the sole and only reason that the said bid did not comply with the requirements of the notice, in that the complainants are not within the state, and the contract could not, under the law of the state, be awarded to complainants, as said contract would be for county printing for the ensuing year, and, if the contract was awarded to complainants under their bid, the county printing would not be done within the State of North Dakota." Plaintiffs interposed a demurrer to this answer, upon the ground that the same does not state facts sufficient to constitute a defense. After hearing counsel upon the issues raised by the demurrer, the trial court ordered "that the demurrer be, and the same is, overruled; and said plaintiffs' application for a writ of mandamus herein, directing defendants to recognize and consider plaintiffs' said bid, is refused and denied, and their application dismissed, on the ground that plaintiffs, being nonresidents of this state, and their principal place of business being in the State of Minnesota, the defendants could not recognize and consider said bid under the law." From this order plaintiffs appeal to this court, and contend here that the trial court erred in overruling the demurrer to the answer, and in denying the application for the writ, and in dismissing the application for the writ.

The principal question is raised by the following averments in the answer, viz.: "That if said bid of complainants was accepted, and the contract for the work specified therein was awarded to complainants, said work would be done outside of the State of North Dakota, and not within the State of North Dakota." The answer shows that the defendants regarded section 1807 of the Revised Codes as containing an inhibition against awarding the plaintiffs the contract for the supplies, as stated in their bid, and this upon the ground that the work was to be done outside of this state. Said section reads: "All county printing shall be done in the state, and if practicable in the county ordering the same." As has been seen, the articles enumerated in the bid of the plaintiffs were county supplies for Cass County and were also printed matter of a miscellaneous character. These facts would seem to bring the bid of the plaintiffs squarely within the prohibition of the statute, inasmuch as the demurrer admits that the averments in the answer are true,...