Butler v. Printing Commissioners , 68 W. Va. 493 ( 1911 )

Buannon, Judge :

S. C. Butler and W. PI. Guthrie filed with the Commissioners of Public Printing, composed of J. S. Darst, State Auditor, E. L. Long, State Treasurer, and M. P. Shawkey, State Superintendent of Schools, competing proposals for doing the public binding, under chapter 16, Code 1906. The board of- commissioners awarded the contract for binding to Guthrie, who gave bond as required by the statute, and the award of the contract was approved by the governor, under section 10, and the contract was filed in the auditor’s office, the place for its deposit fixed by that section. Section 5 prescribes that the commissioners shall award the contract “to the lowest responsible bidder,” and after the contract had been awarded to Guthrie, Butler discovered that his bid was lower than Guthrie’s, arising from Guthrie’s extending into* the total column of his bid certain erroneous sums to which certain items of work would amount charged at the same rate in both bids. Then Butler asked the commissioners of printing to recall their award of the contract to Guthrie, and to award it to Butler; but the commissioners being of opinion that the matter had passed out of their control declined to do so; and now Butler asks of this Court a mandamus to compel the commissioners to award him the. contract for the state binding.

The Constitution requires the Legislature to provide by law that fuel, stationery, paper, binding, and printing shall be let by contract “to the lowest responsible bidder.” Art. YL, section 34. Under that section the Legislature has enacted chapter 16 of the Code of 1906, making the state auditor, treasurer, and superintendent of schools a board or commission to publish notice for proposals or -bids for furnishing the articles and materials and doing the work specified in the statute, and vesting in that board full, ample and complete power to pass on all such bids, giving them all power over the business, subject only to the action of the governer. Our constitution and fabric of government divide governmental powers into three grand divisions, and prohibit the assumption by those exercising the powers of one of them of the just powers of another. This is a cardinal principle, a distinguished feature of our free government, always to be kept in mind; a great light which is always to be thought of in such cases as the present. The functions of the Commissioners are very important in public administration, and are an essential part of the executive department. The judiciary must be very cautions when it interferes with the functions of the executive department. It was said by able men in an early period of our country’s history that the courts were usurpatory of power, and inclined to dominate over other branches of government. The courts should not justify this charge. It does seem that the constitution and statute intend and mean to invest the matter before us exclusively with this executive board erected by the Legislature, under the mandate of the Constitution to deal with it. It is executive or political action, not judicially reviewable. It would seem that it was never intended that such matters should in anywise fall under the supervision of the courts, and be the subject of private litigation. If so the public wheels might be impeded. The Legislature might meet and find its supplies for business involved in a law suit. So with the public offices. Where would be the end of delay and confusion? The character of the transaction or business repels that construction of the law. I do not say. that under no circumstances can courts affect the action of executive officers where void of discretion, and only ministerial; but I do say that in this matter they can not do so; I do say that where with an executive commission of the character involved in this case there is lodged judgment and discretion, a court cannot control it by mandamus; and we hold that this board is vested with discretion in passing on such bids. It is said in Merril on Mandamus, sec. 117, that the writ will go to compel public officers to let contracts to the lowest bidder, but not when vested with discretion. This is only the general rule that it will not go to control discretion. But it is urged-upon us that the law says that the contract must be given to the lowest bidder, without any discretion in the printing commission, if he is pecuniarily responsible. This cannot be sustained. In Douglass v. Commonwealth, 108 Pa. 599, an act directing contracts for supplies to be awarded "to the lowest responsible bidder,” and it was held that-the word “responsible” does not refer to pecuniary ability only, that the act called for “the exercise of discretionary powers on the part of the city, and if they act in good faith, though erroneously or indiscreetly, mandaums will not lie to compel them to change their decision.” State v. McGrath, 91 Mo. 386, holds that “the duties of officers entrusted with the letting of contracts for public work to the lowest responsible bidder are not of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of the courts by mandamusIt held that mamdarmis should not go to compel the commissioners of public printing to award the contract to one on the ground that he was the lowest bidder. This principle is supported by 26 L. R. 710; Page on Contracts, vol 2, p. 1638; State v. Hemmen, 63 Ohio St. 440; Mills v. Larrabee, 78 Iowa 97; People v. Kent, 160 Ill. 655-662; State v. Rickards, 16 Mont. 145, (strong case).

A bidder might be worth thousands, and yet be dissipated, negligent, dilatory or dishonest, and therefore not responsible. There is no such imputation against Butler; but I speak of the character of the official functions as discretionary, and therefore mandamus does not lie.

In State v. Board, 24 Wis. 683, it was held that where the law said the contract should go to the lowest bidder, after his bid had been rejected and the contract let to another, he had no right to a mandamus to compel the execution of the contract to him. The Maryland case, Pavement Co. v. Mahool, 110 Md. 397, holds that the better doctrine in all cases of this nature, and supported by “an almost uniform current of authority” that duties of officers entrusted with “letting of contracts for public improvements to the lowest bidder are not duties strictly of ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of courts by mandamusIt says the courts will not control such officers in absence of fraud or collusion. See 28 Cyc. 663; 20 Ency. L. 1169.

Butler goes on the theory that the statute confers on him a right calling for' mandamus; but I find it laid down in Page on Contracts, section 1049, that “sjich statutes are intended for the benefit and protection of the public, rather than that of the bidders * * * and they confer no absolute right upon a bidder.” This rule seems well supported as denying mandamus. State v. Eaves, 28 L. R. A. 298 (50 Am. St. R. 476). In High, Extra. L. Rem., sec. 92, it is laid down that duties of letting to the lowest bidder for public work is not a ministerial duty, “but involves the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus. And the true theory of all statutes requiring the letting of such contracts to the lowest bidder is, that they are designed for the benefit and protection of the public, rather than that for bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus after it has been already awarded to another.” The case of Ginn & Co. v. School Booh Board, 62 W. Va. 428, holds that the school board cannot be compelled by mandamus to renew a contract for another period. Its principle and eases it cites will sustain the position that the statute involved in this case was not made for the benefit of the bidder, and confers upon him no title or right enforceable by mandamus, and moreover that the printing board has discretion so as not to be subject to mmidaimus. It makes no difference that the pecuniary responsibility of Butler was not and is not questioned. It does not change the cast of the function of. the board; it does not take away their discretion.

The defendants say that whilst Blutlex’s bid ivas the lowest for binding taken as a whole for that and printing and stationery it was not lower, and that they could not say, even if they had known the mistake, they would have let the binding contract to. Butler, as they might have deemed it best to deal with one bidder for all. Certainly this was in their discretion.

Another question has suggested itself. The contract was complete, and as a mandamus does not go to reverse a completed act, it does not here lie, unless we can regard the action of the board void as if without jurisdiction; but as it had clear jurisdiction over the matter, it would be rash to say that its act is void.

The question is made by counsel whether an additional reason against awarding the writ is not found in the claim that the suit is against the State and therefore prohibited by the Constitution. We do not decide this point. It may be said no liability is sought to be imposed upon the state, nor is her property affected; yet her officers are sued only because they are such, and having no personal interest, and the law is that the prohibition of suit against the state cannot be evaded by circuitous action in making the officers parties. This suit is to establish a contract imposing liability on the state, which it would recognize, though no suit could be brought on that contract. A mandamus for relief in such a case as this was held a suit against the state in Mills Pub. Co. v. Larrabee, 78 Iowa 97. See Miller v. Board, 46 W. Va. 192.

The case of Dillon v. Bare and Carter, 60 W. Va. 483, will not justify mandamus in this case. There it was held that the officer had shirked his duty, made a false and fraudulent valuation, no performance of duty at all. Besides, there a public officer representing the- interest of the state sought to have a public officer execute a law requiring assessment of taxes, a law for the sole benefit of the state; whereas here is an individual seeking to enforce an act made to further state interest, not an indi-vidüal’s.

■ We refuse the mandamus. Writ B,efused.