Vincent v. Ellis

• Decision Date: 21 January 1902
• Citation: 88 N.W. 836,116 Iowa 609
• Parties: MITCHELL VINCENT, Appellant, v. C. B. ELLIS, Appellee
• Court: Iowa Supreme Court

88 N.W. 836

116 Iowa 609

MITCHELL VINCENT, Appellant, v. C. B. ELLIS, Appellee

Supreme Court of Iowa, Des Moines

January 21, 1902

Appeal from Monona District Court.--HON. GEO. W. WAKEFIELD, Judge.

MANDAMUS to compel the defendant, who is county auditor of Monona county, to award to plaintiff a contract for the construction of a ditch. Demurrer to petition being sustained, and plaintiff electing to stand upon his pleading without further amendment, there was judgment for defendant, and plaintiff appeals.

Affirmed.

Brown & Anderson and C. E. Underhill for appellant.

McMillan & Kindall for appellee.

WEAVER J.

OPINION

WEAVER, J.

The petition alleges that by proper proceedings under chapter 2, title 10, of the Code, a public ditch was located through lands in Monona county; that, for convenience in letting the work of excavation, the ditch was divided into 20 sections that defendant, as county auditor, gave due notice of the letting of said work in separate sections as provided by law that plaintiff became a bidder for such work upon each and every section at prices varying from 6.7 cents to 10 cents per cubic yard; that the Canal Construction Company was also a bidder upon all of said sections at the uniform price of 7.25 cents per cubic yard, said bid being conditioned upon obtaining the award of the entire work; that plaintiff, by reason of his said bid, became entitled to be awarded the contract for excavating all of the 20 sections of the ditch; that, if the bid of the Canal Construction Company be construed as applying to the sections separately, then plaintiff was entitled to a contract for 8 of said sections, upon which his bid was less than 7.25 cents per cubic yard; that defendant wrongfully refuses to award plaintiff the contract for excavating the ditch, either as a whole or in part, and threatens to let the same to the construction company, and that plaintiff is ready, upon the award of the contract to him, to make and deliver a good and sufficient bond, as required by law, to secure the due performance of the work according to his bid. Upon these allegations plaintiff demands "that a peremptory writ of mandamus issue, directed to said defendant, commanding him forthwith to award said contract for the construction of each and every one of said sections to the plaintiff, and especially for the construction of sections 1, 3, 4, 6, 10, 11, 12, and 20." The ruling of the district court sustaining defendant's demurrer to the petition is based upon the ground that the facts stated do not entitle plaintiff to the relief demanded, in that the plaintiff seeks by the writ of mandamus to control the discretion and judgment of the county auditor in the performance of an official duty. With this statement of the record, we proceed to consider whether there was error in said ruling.

I. The action of mandamus, as defined by Code, section 4341 "is one brought to obtain an order commanding an inferior tribunal, board, corporation or person to do or not to do an act the performance or omission of which the law enjoins as a duty resulting from an office, trust or station. Where discretion is left to the inferior tribunal or person the mandamus can only compel it to act but cannot control such discretion." Such, substantially, is also the definition at common law, as shown by authorities too numerous and familiar to require citation. It is of fundamental importance, therefore, to determine whether the act for which a writ is demanded in this case involves the exercise of any discretion or judgment on the part of the county auditor. The statute governing the manner of letting contracts for the construction of such ditches provides (Code, sections 1943, 1944) that, after the board of supervisors have divided the proposed ditch into suitable sections, the auditor shall cause notice of the letting to be published, giving the kind and approximate amount of work to be done on each section, and that at the time named in such notice he shall proceed to let the work upon each separate section to the lowest bidder, who shall be required to execute a bond, with sufficient sureties, or deposit cash, as security for the performance of the contract. So far as the petition reveals, there were but two bidders upon the work; and of these, according to the allegation, the bid of the Canal Construction Company was in fact a bid for the excavation of the entire ditch, instead of an independent proposition upon each of the several sections, as it is claimed the law requires. Here, then, was the situation with which the auditor had to deal: If both bids were to be considered and treated as being for the entire work, then the Canal Construction Company's bid involved the smaller aggregate expense, and was "lowest," within the ordinary meaning of that word. If both bids were to be considered and treated as being made upon each of the several sections independently, then each of the bidders was entitled to be awarded a part of the work. If, however, the bid of the construction company was, as alleged, a bid for the work as a whole, and therefore not entitled to consideration, then neither was entitled to the award, even though plaintiff's bid was in due form. A letting to the "lowest" bidder implies the existence of competition, and, if one of two bids be fatally informal, then the other, standing alone, is without competition, and may rightfully be rejected, even though unobjectionable in form and substance. People v. Supervisors, 42 Hun 456. Whether the duty of a public officer who is required to let a contract to the lowest bidder involves the exercise of any discretion on his part is a question upon which the cases are not in harmony. The Ohio courts have held, in substance, that the act is ministerial only, and may be enforced by mandamus, even after an award to another bidder who has proceeded to the performance of the work. Boren v. Commissioners, 21 Ohio St. 311. But no other court seems to have gone to that extent, and we think the holding not in accordance with the weight of authority. People v. Board, 27 N.Y. 378; People v. Campbell, 72 N.Y. 496; People v. Supervisors, supra; People v. Thompson, 99 N.Y. 641, 1 N.E. 542; People v. Croton, 49 Barb. 259; People v. Aldridge, 83 Hun 279 (31 N.Y.S. 920); State v. Board, 24 Wis. 683. In People v. Supervisors, supra, the court, in discussing the statutory duty of the board of supervisors to let a contract to the lowest bidder, says: "It does not seem possible that the legislature intended to take from the supervisors all discretion as to the making of contracts for the people of the county. Suppose, from accident or design, it should happen there was but one bid, and that was for a grossly exorbitant price; could it be said that the board must nevertheless award the contract? Such construction would turn a statute intended for the protection of the public into an instrument of fraud and robbery." In People v. Board, supra, the statute provided that the board should make the award "to the lowest bidder who shall give adequate security for the performance of the contract," which is, in effect, precisely the duty placed upon the auditor in the case now before us. Construing that statute, the court, while intimating that in its judgment the plaintiff's bid was lowest, and that he should have been awarded the contract, denies his right to mandamus, saying: "The powers conferred upon the board necessarily involved and implied an exercise of discretion, although it seems exceedingly clear what decision their duty required them to make in this case. But they are to determine who is the lowest bidder, and what is adequate security. * * * The principle is well settled that whenever the act requires the exercise of discretion this remedy will not lie. There must be a clear legal right not merely to a decision in respect to the thing sought, but to the thing itself. * * * The relator has no contract,--no right to any specific act free from all discretion in the contracting board." It may easily result, also, that the same act which is ordinarily purely ministerial may at times be accompanied by circumstances which require the exercise of discretion, and that, while mandamus will lie in the former instance, it will not in the latter. Marcum v. Commissioners, 42 W.Va. 263 (26 S.E. 281, 36 L. R. A. 296). In that case the statute required the ballot commissioners to place upon the ballot, under the appropriate party heading, the name of every candidate which was certified and filed in the manner provided by said act. It so happened that for one office two different persons presented certificates in due form, each showing...