Berry v. City of Tacoma

The opinion of the court was delivered by Dunbar, J. This is a suit for injunction brought by plaintiff and appellant to restrain the city of Tacoma and its officers from awarding the contract for the city printing from October 5, 1894, to October 5, 1895, to the Union Publishing Company, of from designating the Morning Union, published by the Union Publishing Company, as the official paper of the city, and declaring invalid and void the bid of the said company, and the designation, or attempted designation, of the Morning Union as the official paper, and any and all contracts or bonds made or attempted to be made with the said company. The complaint alleges the qualifications of the appellant under the provisions of the law and the city charter of Tacoma; sets forth the provisions of the charter in relation to the letting of the public print [5] ing, and alleges that he bid in accordance with the law; that his bid was lower than that of the Morning Union, to which the contract was let; alleges that lower bidders than the Union Publishing Company were responsible and able to make good their bids, and that the said city council refused to exercise its discretion in awarding said contract; and all the other allegations necessary, if found true, to warrant the relief asked for. An investigation of the testimony, which the appellant has brought up in this case convinces us that the contention of the appellant must be sustained. This court decided, in State ex rel. Pub. Co. v. Milligan, 3 Wash. 144 (28 Pac. 369), that— “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;” and it was stated in the opinion rendered in that case, that, “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.” Of course, we do not question the proposition urged by the respondents that where matters are left to the discretion of bodies of this kind the exercise of that discretion in good faith will not, in the absence of fraud, be disturbed. This proposition is too elementary to be discussed, and it is frankly admitted by the appellant in this case. But the testimony shows that the council refused to exercise its discretion in rela [6] tion to the qualifications of the bidders. The president of the council and many of the members stated that they would not take into consideration any bidder excepting one who was the owner of a newspaper, thereby deciding that it does necessarily follow that the best bidder is a person who has a newspaper, in opposition to the doctrine expressed by this court in State ex rel. Pub. Co. v. Milligan, supra. The testimony shows that it was the determination of the council not to take into consideration, or to investigate, the qualifications of any of the bidders other than the owners of newspapers; and if, as we think, the law is that the council should exercise its discretion in investigating the qualifications of bidders, and they arbitrarily dismissed from such investigation or consideration- a certain class of bidders, then, certainly, as to that class, the council has refused to exercise its discretion. It is hardly worth while to review the testimony at length in this case, for there is but one conclusion that can be intelligently reached from its perusal, and that is that the council refused to entertain under any circumstances the bid of this appellant and others who were not owners of newspapers. This, we think, was error, and without discussing any of the others alleged by the appellant, for this error the judgment will be reversed and the cause remanded with instructions to grant the relief prayed for. Scott, Anders and Gordon, JJ., concur. Hoyt, 0. J., not sitting.