Hammer v. Smith

NAVE, J. — A. H. Hammer applied to the district court for a writ of certiorari to review the action of the, board of supervisors of Yavapai county in letting a contract for public printing for the year 1907, alleging that the contract had been let without giving the notice required by statute. The board of supervisors appeared in the action and demurred to the sufficiency of the application. The district court sustained the demurrer, and dismissed the proceeding. Prom the judgment of dismissal, the petitioner has appealed. One question alone need be considered in determining this appeal. Our statutes require that “the contract [for public printing] shall be made with the best responsible bidder.” — 423 — Rev. Stats. 1901, par. 979. Our statute governing the issuance of the writ of certiorari has the customary provision that it “shall be granted in all cases where an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer and there is no appeal nor, in the judgment of the court any plain, speedy and adequate remedy.” Rev. Stats. 1901, par. 432. The question is whether the board of supervisors was exercising a judicial function in letting the contract in question. Appellant maintains by reason of the fact that the board must determine who of the respective bidders is the “best responsible bidder,” that it must exercise discretion and use judgment, and therefore that its action is judicial within the meaning of the statute. The necessity for distinguishing among judicial, legislative, and executive functions has arisen in innumerable cases before nearly all of the courts of last resort. There is confusion in the conclusions reached. To review all or a considerable number of these cases would be burdensome, and would not serve a useful purpose. A great number of cases in which the exercise of judicial functions is distinguished from the exercise of the other functions is collected in 17 Am. & Eng. Ency. of Law, 2d ed., 886 et seq., and 23 Cyc. 1613 et seq. The criterion for which appellant here contends has been recognized in some of these decisions, to wit, that, if the action of the tribunal calls for the exercise of judgment and discretion, it is judicial. It is our view that this is not a sound criterion. It is true that, where there is exercise of neither judgment nor discretion, there is not the exercise of a judicial function; but it is not true that every function wherein judgment and discretion are exercised is a judicial function. People v. Board, 97 N. Y. 38; Quinchard v. Board, 113 Cal. 664, 45 Pac. 856. Every legislative act requires the exercise of both judgment and discretion; so, also, do many executive acts. That a function may be held to be judicial, it must be exercised in determining the merits of an issue. That there may be an issue either of law or of fact, there must be involved the interests, contending to some degree at least, of two or more parties. There is such an issue between the public on the one hand and the official on the other hand, when a tribunal is called upon to determine whether a fireman or a policeman shall be removed for dereliction. People v. Police Commissioners, 155 N. Y. 40, 49 N. E. 257; Gilbert v. Commissioners, 11 Utah, 378, 40 Pac. 264. — 424 — The public has an interest in such a, ease comparable to that which it has in a criminal case, and is, in an analogous quality, a party to the proceeding. There is a similar issue when the board of supervisors inquires into the sufficiency of an officer’s bond and requires of him a new bond under penalty of the vacating of his office. People v. Marin Co., 10 Cal. 344. So, also, the public and the' taxpayer have contending interests in the determination of valuations by the county or territorial board of equalization. Copper Queen C. M. Co. v. Board, 7 Ariz. 364, 65 Pac. 149; Copper Queen C. M. Co. v. Territorial Board, 9 Ariz. 383, 84 Pac. 511. In the case before us there is no issue, although there is demanded the exercise of both judgment and discretion in determining who is the best responsible bidder. There is no issue because there is but one party in interest — the public. As against one another the bidders present an issue, but this issue is merely incidental. Its adjudication is not the ultimate. No bidder' has a right to the contract. None has a right or privilege of any sort to be conserved by the board. To be a party to a judicial determination one must present as against his adversary a right or privilege to be maintained or denied. The discretion and judgment exercised in this matter are those of an agent seeking the best interest of his principal in letting a contract. They are executive discretion and judgment, not judicial. Illustrative cases are Tanner v. Nelson, 25 Utah, 226, 70 Pac. 984; People v. Board, 54 Cal. 375 (contra, Jacobson v. Board (N. J. Sup.), 64 Atl. 609); Adleman v. Pierce, 6 Idaho, 294, 55 Pac. 658. The function exercised by the board of supervisors in this instance not being judicial, the action of the trial court in sustaining the demurrer and dismissing the proceeding was sound, and must therefore be affirmed. KENT, C. J., and DOAN and CAMPBELL, JJ., concur.