Times Pub. Co. v. City of Everett

• Citation: 9 Wash. 518,37 P. 695
• Parties: TIMES PUB. CO. v. CITY OF EVERETT ET AL.
• Decision Date: 04 September 1894
• Court: United States State Supreme Court of Washington

37 P. 695

9 Wash. 518

TIMES PUB. CO. v. CITY OF EVERETT ET AL.

Supreme Court of Washington

September 4, 1894

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by the Times Publishing Company against the city of Everett and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

Hoyt J., dissenting.

Church & Akerman, for appellant.

H. D Cooley (N. D. Walling, of counsel), for respondents.

STILES J.

Gen St. § 649, provides that in cities of the third class the council shall annually, at a stated time, contract for doing all city printing and advertising, which contract shall be let to the lowest bidder; advertising to be done in a newspaper printed and published in such city. The city of Everett, by Ordinance No. 3, fixed the stated time as April 1st; required that the newspaper must have been published at least one year before the date of contract, and that the contractor must give bond as the council might determine; and directed the city clerk to give notice, by publication, of the annual letting. Pursuant to this ordinance the clerk gave a notice that bids for the city advertising would be received at a certain time. The notice stated no particulars of what would be required in the way of advertising, or how the bids should be framed. At the proper time, two bids were presented,-one by appellant and one by James N. Bradley. Appellant's bid was for solid nonpareil, at 25 cents per inch for the first insertion, and 15 cents for subsequent insertions. Bradley's bid was for the same kind of type at $1 per inch for the first and 50 cents for each subsequent insertion. Other propositions of the two bidders were substantially the same, except that Bradley offered that if the contract were awarded to him he would publish the official proceedings of the council free of cost to the city, and the city delinquent tax list at the rate of 5 cents for each description. The council awarded the contract to Bradley by resolution declaring him to be the "lowest and best bidder therefor." There was no other finding concerning either of the bids. Appellant, in its complaint, shows these facts, and that a contract based upon his bid has been entered into between the city and Bradley, and also that it is a taxpayer in the city of Everett. The object of the action, as stated in the prayer, is to enjoin the performance of the contract, and to require the city to enter into a contract with it, as the lowest bidder, for the advertising.

Four grounds of demurrer were alleged: (1) No jurisdiction of the subject-matter; (2) defect of parties, in that the individual members of the council were not made defendants; (3) several causes of action improperly joined; (4) not sufficient facts to constitute a cause of action. We are not advised upon which of the grounds the court sustained the demurrer, but only the last two are argued here.

As to the third, it is urged that the appellant is seeking relief in a dual capacity, and inconsistent relief at that. As a taxpayer, it would enjoin the performance of the contract on the ground of its illegality, and because, by reason of the high price agreed to be paid for advertising, in face of the lower bid, it will suffer wrong in excessive taxation. In this capacity it has no interest in its own bid, and the result of the suit would be a new letting of the contract. But, as bidder, its object is to secure a contract for itself, based upon its low bid, and it has no concern whether the city go on with the Bradley contract or not. There is no question but that the complaint was framed with the double purpose of enjoining the defendants at the suit of a taxpayer, and of procuring a mandamus for its own benefit as a bidder, and the brief frankly concedes this. This was an attempt to improperly join two causes of action, to the second of which Bradley was neither a necessary nor a proper party. But if there was a statement of one good cause of action, and an attempted statement of another, which called for a species of relief which would not be conceded under any state of the pleading, we think a demurrer for misjoinder ought not to lie. It must be premised that this complaint is not divided into separate counts or causes of action, but is a continuous statement of facts, only two paragraphs of which, the twenty-first and twenty-seventh, together with the prayer, indicate a design to claim relief other than by the injunction. Strike out such portions of the paragraphs mentioned as pertain to the appellant's prospective profits under its bid, and the prayer for a mandamus, and there will be left only a taxpayer's complaint for injunction, which, in our view, is the only sustainable cause of action.

The generally accepted rule is that the courts will not, by mandamus, compel a municipal corporation to enter into a contract with one who shows himself to have been the lowest bidder in a competition of this kind. High, Extr. Leg. Rem. § 92; State v. Board, 24 Wis. 683; Kelly v Chicago, 62 Ill. 281; State v. McGrath, 91 Mo. 386, 3 S.W. 846; Douglass v. Com., 108 Pa. St. 559; Madison v. Harbor Board (Md.) 25 A. 337. The case of Baum v. Sweeny, 5 Wash. 712, 32 P. 778, is distinguishable from the foregoing citations in that the adjudication there had was upon an appeal which lay directly from the board of county commissioners to the superior court, and...