State ex rel. Silver v. Kendall , 15 Neb. 262 ( 1883 )

Lake, Ch. J.

The relator, Eobert D. Silver, was one of the two Bidders for the contract for the erection of the main Building of the new state capitol, and "William H. B. ■Stout, one of the respondents, was the other, and the successful one; the contract having been formally awarded and let to him. The other respondents constitute the state board of public lands and buildings, to whom the duty of awarding and letting the contract belonged. This '.work, and the contract for doing it, were provided for in .the act of the legislature entitled — “An act to provide,” •etc., “for the erection of the main building of the new capítol,” etc., approved February 27th, 1883. (Laws, Ch. JXCYI.) The relief sought by the relator is, to have said board required to cancel the contract entered into with •Stout, and to make a new award upon the basis of his own Bid. This we are unable to do, for the following reasons, .stated as briefly as possible:

The relator seeks the relief prayed for on the ground that his bid conformed in every particular to the requirements of the statute, and was the best and the lowest, by the sum of forty-one thousand one hundred and eighty-.seven dollars and twenty-five cents. If such were in fact the real character of his bid, as shown by the evidence, inasmuch as it was evidently contemplated by the legislature •that such an one, if any, should be taken, we might po3-sibly be able to grant the desired relief. But unfortunately for the relator, and perhaps for the state, such was not his bid in the estimation of the board, nor as shown by the evidence here produced.

Referring to the reasons assigned by the board at the time of making the award, for their action, we find the following: “That the bid of said Silver is not in accordance with the law, the advertisement heretofore adopted by this board, in that the sample of stone, considered by the board as the most essential sample of material to be furnished, did not comply with subdivision three, page ten of the specifications heretofore adopted, in that the stone so-presented as a sample, did not come ‘from a quarry which has been worked long enough to insure equal texture, quality, color, and sufficient quantity of the quality, texture, and color’ to complete the said main capítol building. But that said sample of stone did come from some ledge of rock unknown to this board, or to Mr. Silver, who offered it as a sample. And the board do further consider that it would be against public policy and the best interest of the state, to award a contract for such an important building to be built from stone from a ledge of rock, undeveloped, and of which nothing is known,” etc. “ That the bid of W. H. B. Stout was in accordance with the law, the advertisement, and the specifications; that the sample of stone furnished by him was from a quarry wrhich had been developed for several years, and from which the stone used in the construction of the east and west Avings were furnished, and that the said quarry appeared in condition to furnish the necessary quantity and quality of si one desired,” etc.

Without referring particularly to the evidence on the subject, we will say that these findings of the board as to-the samples of stone exhibited by Silver and Stout respectively, are fully sustained; indeed, they are practically conceded to be true. In his testimony, Mr. Silver says “This sample of rock I got from Mr. G. A. C. Smith before bidding for the east wing of the state house, August,, 1881, I think. This is the same sample I then furnished. 1 got several samples, and I think this is one of them. I may be mistaken. I know not from what quarry Mr.. Smith got the rock other than what he told me. I do not. know of my own personal knowledge that it had been opened and worked. * * * I cannot swear whether it. came from a quarry, and was not a piece of loose rock. * * * * I did not then have a quarry from which I was-to furnish, the stone. * * * * I knew where I thought I could get the stone from. Lansing & Yansen had a quarry from which I thought I could get the rock. * * * * I do not know when this quarry of Lansing & Yansen was opened. * * * I had no reason to believe-this piece of rock came from their quarry.” The sample exhibited by Stout came from his own quarry on the Platte-river, opposite the town of South Bend, which was fully developed. Such being the basis of the action of the board, the question to be decided is simply, whether it supports the award, or, in other words, whether, under the law governing their action, these findings respecting the samples of stone were material, and of a matter intrusted to their judgment and discretion ?

Looking to the act of the legislature before referred to we find that the first step required of the board in the construction of this building was to select an architect, and adopt “plans and specifications,” which they did under sec. 3 of said act. This section was evidently framed in the interest of William JEL Wilcox, the architect selected; the-board being directed, impliedly at least, to give him the job of furnishing the plans and specifications, if he would take it for the designated compensation, viz., “for a sum not to exceed three-fourths of one per cent of the contract price of the building,” which he seems to have done. The next step of the board was, under section 6, to advertise forbids for the erection of the building, “ and the completion. >of the same in accordance ■with, the plans and specifications adopted.” In the consideration of bids, and the award of the contract, they were specially directed by section 8 to •“ have due regard to the samples of materials furnished with the bids,” and to see to it that the facings and trimmings of the building should "be of limestone, and of ■equal quality, and of same color, as near as practicable to that used in the east and west wings, now completed.” And by section 10, the board were required to “reserve the right to reject any and all bids,” which, “in their judgment,” were “not in accordance with the law and the advertisement.”

Thus it is seen that the decision of the board on the merits of the bids, in the matter of their compliance with the requirements of the specifications, was made a very material part of their duty. The specifications, when adopted, became, as it were, a part of the law for their guidance afterwards. The invitation for proposals, the bids, and the award of the contract were all required to be with special reference to the plans and specifications, 'and .subject to them. Looking to the specifications, we find they provide in respect to the stone, first,that it must “correspond exactly with the two wings now completed,” and second, that “no stone will be permitted to be used, unless it is taken from a quarry which has been worked long enough to insure equal texture, quality, color, and sufficient quantity of the quality, texture, and color to absolutely conform with that used in the east and west wings of the new capítol.”

It being conceded that, in this particular at least, Silver's bid was materially defective, it could not properly have been .accepted. The specimen of stone which he submitted may have been fully equal in texture and durability to that produced by his competitor, but in every other of these requisites it was entirely deficient. Not only was it wanting in the particular on which the board placed their decision, but, as the testimony shows, in that of color also.

To any one at all acquainted with the meaning of language and the rules of construction of statutes, it must surely be evident from these brief references to the law and the specifications by which the board were governed, that in several particulars, and especially in the matter of whether the bids were “in accordance with the law, and the advertisement,” the legislature intended to trust solely to their judgment. This being so, it is very clear that no court has the right, by the writ of mandamus, to interpose its judgment, to direct or influence their action. To do so would be usurpation. The only acts which courts can rightfully control by this writ are such as are purely ministerial, and with which nothing like judgment or discretion is connected. United States v. Seaman, 17 How., 225. Same v. Guthrie, Id., 378. State, ex rel. Lewis, et al. v. Governor et al., 22 Wis., 110. People v. The Contracting Board, 27 N. Y., 378. Though they may require inferior tribunals to exercise judgment given them, or to proceed to the discharge of any of their functions, they “cannbt control judicial discretion.” Code of civil procedure, § 645.

Several other points were raised and discussed by counsel on the hearing, as tending to support the action of the board, but, as the one we have considered seems to ha\ e controlled the action of the board, and is conclusive in our ■estimation of the relator’s rights under the law, we will not notice them. We desire it to be understood, that in ■denying the writ we place our decision squarely on the ground that, in awarding the contract to Stout and denying it to Silver, the board were required to and did exercise their own judgment in matters respecting which they cannot properly be controlled by mandamus.

Writ denied.'

Cobb, J., concurs.