State ex rel. News Publishing Co. v. Milligan

The opinion of the court was delivered by

Dunbar, J.

This action involves the construction of § 48, art. 3 of the city charter of the city of Tacoma, which is as follows:

“Sec. 48. The city council shall annually let the public printing to the lowest and best bidder, who shall give a bond to the city, in such sum as may be fixed by the council, to well and faithfully perform the contract, should he receive the contract for doing the city printing, and it shall be the duty of the city council, after having let the contract for the city printing, to designate the newspaper published by the party receiving said contract as the official newspaper of said city. All ordinances, resolutions, notices, tax and assessment sales and other proceedings, statements, doings or matters of the city required to be printed shall be published therein.”

It is contended by the respondent that by virtue of said section the city council is compelled to let the contract for the city printing to the lowest and best bidder, who must at the time be the publisher of a newspaper, or at least that they cannot let the contract to any one who is not, at the time of the bidding, the publisher of a newspaper. This was the construction placed upon the law by the court, and the construction that is necessary to sustain the injunction in this case; while it is contended by the appellant that no such restrictions are placed upon the city council, which is the sole and exclusive judge of the bids for the printing. This section may appropriately be characterized as an instance of unfortunate legislative expression, and a plausible argument may be predicated on either construction, and it cannot be gainsaid that the argument of counsel for respondent presents many reasons tending very strongly to support his contention. And yet it seems to us that such construction does not necessarily follow from the wording of the section, and the court will be inclined to give it the most liberal construction, and allow the fullest scope for competition consistent with its terms. It cannot bepresumed that in enacting this act the local legislature had in view a protective policy for the benefit of established newspapers, or that the welfare of newspapers entered into its calculations at all. It is evidently the spirit and intention of the law that the city council shall be cloth ed with authority to make the best bargain it can for the city with reference to such printing, and it must necessarily be clothed with some discretion as to who is the lowest and best bidder. This discretion seems especially conferred upon it and upon no other tribunal, and in the absence of a fraudulent abuse of discretion, its judgment is supreme. It does not necessarily follow that the best bidder is the person who has a newspaper with the largest circulation, nor does it follow that because the council is required after having let the contract to designate the newspaper published by the party securing said contract as the official newspaper of the city, that the newspaper so designated shall then be in existence. If it sees fit the city council has a perfect right to demand conditions precedent to the letting of the contract; it may require the bidder to enter into contract to publish a certainkindof newspaper, and even that it shall have a certain circulation; after this is done it may award the contract and name the paper. The requirement of the charter as to designating thepaper doing the printing as the official newspaper is simply a requirement to give notice, and is no part of the contract. Had the freeholders intended to confine the bidding to owners of newspapers, they would probably have expressed such limitation in unmistakable terms, and in the absence of such expressed limitation, or of language plainly inferring it, courts will not be justified in presuming such restrictive intention.

No principle of equity jurisprudence is better established than that courts of equity will not sit in review of proceedings of subordinate political or municipal tribunals, and that where matters are left to the discretion of such bodies the exercise of that discretion in good faith will not, in the absence of fraud, be disturbed. High on Injunctions (3d ed.), § 1240. In this case we think the council was acting within the scope of its lawful authority, so that the rule laid down by Mr. High in the next section, 1241, “that the restrictions thus placed upon equitable interference with the action of municipal corporations do not extend to cases where the act sought to be enjoined is in excess of the corporate power,” has no application to this case. Possibly some inconvenience may on occasion arise by pursuing the policy adopted by the city council of Tacoma in this case; but to hold that the bidders must have the qualification of publishers would be to encourage a monopoly in the bidding business which might defeat the very object of the law and deprive the city of the benefit of competition, and make the requirement of bidding a mere farce. In this case we think the law authorizes the action of the city council, that they are acting within the limits of their discretion, and that the court therefore did not have jurisdiction of the subject-matter of the action, and that its action is therefore void.

It has been uniformly held by the supreme court of the United States that where a court acted without jurisdiction that the order of said court imposing a fine for contempt is void. In Ex parte Fisk, 113 U. S. 713 (5 Sup. Ct. Rep. 724), the court says:

“ The circuit court was, therefore, without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order fining him for contempt, and committing him to the custody of the marshal, was without jurisdiction and -void, and the prisoner is entitled to his release.”

It was announced by the court, In re Ayers, 123 U. S. 443 (8 Sup. Ct. Rep. 164), that “when a court of the United States undertakes, by its process of contempt, to punish a naan for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.”

The same doctrine is reiterated in In re Sawyer, 124 U. S. 200 (8 Sup. Ct. Rep. 482), where the court thus lays down the rule:

“The circuit court being without jurisdiction to entertain the bill in equity for an injunction, all its proceedings in the exercise of the jurisdiction which it assumed are null and void. The restraining order,in thenature of an injunction, it had no power to make. The adjudication that the defendants were guilty of a contempt in disregarding that order is equally void, their detention by the marshal under that adjudication is without authority of law, and they are entitled to be discharged.”

It is not necessary to pursue the authorities further, though we think on this point they are uniform, and indeed it is conceded by the respondent that “the parties may with impunity violate an injunction which is absolutely void because of the total want of jurisdiction;” but he combats the idea that they may violate an injunction based upon a complaint which does not state facts sufficient to constitute a cause of action, which proposition is not considered or passed upon by this court, the judgment of this court being based upon the conclusion that the court was without jurisdiction of the subject-matter. It follows that the judgment must be reversed, the writ of attachment quashed, and the defendant discharged; and it is so ordered.

Andeks, O. J., and Hoyt, Stiles and Scott, JJ., concur.