Dempsey v. State

Smith, C. J.,

delivered the opinion of the court.

The appellant is or was a.member of the board of supervisors of Winston county, and was convicted of knowingly voting to award a “contract for keeping the paupers” of the county to his son, J. Y. Dempsey, who, the indictment alleges, “was not the lowest responsible bidder” for said contract. Section 1, chapter 278, Laws of 1922, provides: “That it shall be unlawful for any member of the board of supervisors of any county in this state to knowingly vote, to let any contract to or for the employment by contract or otherwise of any relative of any member of the board of supervisors by blood or marriage, within the third degree for the performance of any work, or for the furnishing of any supplies or material, within the county. However, this act shall not apply to work or labor or the furnishing of supplies or material where the same is let to the lowest responsible bidder on competitive bids.”

The evidence discloses that the contract was let on sealed bids made pursuant to an advertisement therefor and that one or more of these bids was lower than that of J. Y. Dempsey, a son of the appellant to whom the contract was awarded and for whom the appellant voted. The evidence is silent as to the' responsibility of any of the bidders for the performance of the contract and also as to their willingness and ability to execute a bond therefor. The appellant’s request for a peremptory instruction was refused.

The statute expressly provides that it shall not apply to contracts awarded on competitive bids “to the lowest responsible bidder.” The contention of the state is that the responsible bidder here meant is one who’can and will execute a proper bond for the performance of the contract. The contention of the appellant is that a responsible bidder is not only one who can and will give a bond, but who is a competent, efficient, and otherwise suitable person for the discharge of the duties which he will be called on to perform under the contract. It is not necessary for us to decide between these contentions, for, conceding that of the state to be correct, there is no evidence as hereinbefore pointed out as to the willingness or ability of the various bidders for the contract to execute a bond therefor.

The state having failed to prove, as under the statute it was bound to do, that Dempsey, was not the lowest responsible bidder for the contract, the court below should have complied with the appellant’s request to direct the jury to find him not guilty.

, The judgment of the court below will be reversed and the appellant discharged.

Reversed and the appellant discharged.