Dement v. Rokker

Mr. Justice Scholeield delivered the opinion of the Court: When this case was first considered by us, we entertained some doubts whether we were not denied jurisdiction to fender judgment in it, by the provisions of an act approved June 6, 1887, entitled “An act to amend section 8 of an act entitled ‘An act to establish Appellate Courts,’ approved June 2,1877,” (Laws of 1887, p. 156,) and we therefore invited discussion, in writing, by the counsel upon the respective sides, upon that -question. In response to that invitation, the question was thoroughly discussed, in writing, by the respective counsel; and, aided by that discussion, we have now carefully considered the question; and, having done so, we have come to the conclusion that our former doubts were not well founded, and that our jurisdiction is unaffected by the act of the 6th of June, 1887. That act is limited, both by its title and by its subject matter, to Appellate Courts. While it is true that the name of this court occurs in the body of the act, it does so incidentally, only, and in an explanatory sense, and not as having its jurisdiction thereby contracted. But if the body of the act assumed to affect the jurisdiction of this court, it is clear that so much of it would be unconstitutional and void, since the title of the act only relates to Appellate Courts, and section 13, of article 4, of the constitution, provides, that “if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void * * * as to so much thereof as shall not be so expressed.” The. jurisdiction of this court is defined by the 88th, 89th and 90th sections of the “Act to amend an act entitled ‘An act in regard to practice in courts of record,” ’ etc., which took effect July 1, 1877, and subsequent statutes amendatory thereof. And the act of June 6,1887, not only does not profess to repeal any portion of that act, or of any act amendatory thereof, but it does not, in terms, refer to it; nor does it assume to revise it, or to re-enact law covering the same subject matter. Under our statute, a mandamus proceeding is an action at law, and it is- therefore governed by the same rules of pleading that are applicable to other actions at law. (Bev. Stat. 1874, chap. 87, sec. 1,—2 Starr & Curtis, 1584; People v. Glann, 70 Ill. 232.) Hence, when the petition is to enforce a private right, the petitioner must be the party in interest. (Pike County v. State, 11 Ill. 202.) Necessarily, therefore, the writ will not be granted when parties are shown to have a legal interest in the contract sought to be enforced who are not before the court, and whose rights will be collaterally determined by the judgment, if rendered as prayed. People ex rel. v. Forquer, Breese, 104. All persons who are partners in a firm at the time when a contract is made, must, unless there be a legal excuse for not joining them, be joined in an action to enforce its payment. 1 Chitty’s Pl. 12, *13; 2 Wheaton’s Selwyn’s Nisi Prius, 866, 867; Dicey on Parties, (Truman’s notes,) 172, *151. If there be a legal excuse for not joining a partner, as, if he be dead, etc., the plaintiff must allege it. 1 Chitty’s Pl. 14, *15; notes to Cabell v. Vaughan, 1 Saunders, (Williams’ notes,) 291 f. And Chitty says, (1 Pleading, 13, *14,): “In all cases of contracts, if it appear upon the face of the pleadings that there are other obligees, covenantees or parties to the contract, who ought to be, but are not, joined as plaintiffs in the action, it is fatal on demurrer, or on motion in arrest of judgment, or on error; and though the objection may not appear on the face of the ' pleadings, the defendant may avail himself of it, either by plea in abatement or as a ground of non-suit, on the trial,—as, a variance upon non est factum, if the action be upon a specialty, or if it be upon any other contract, upon the plea of the general issue.” See, also, authorities cited supra, and Armine v. Spencer, 4 Wend. 406; 16 Johns. 34. The rule is familiar, that to entitle a party to the writ of mandamus, he must show a clear right to the relief sought. If the right be doubtful, the writ will not be awarded. People ex rel. v. Trustees of Schools, 86 Ill. 613; Brokaw v. Commissioners, 118 id. 239; Board of Supervisors v. People, id. 459. This petition is filed by Henry W. Rokker, Thomas Rees and Charles T. Strattan, partners, under the firm name of H. W. Rokker & Co. It alleges, among other things, that “on the 13th of September, 1886, the firm of H. W. Rokker & Co., then composed of the petitioners and one Clarence H. Davenport, entered into a contract with the People of the State of Illinois, etc.; * * * that after the execution and filing of said contract, to-wit, on September 23, 1886, one of said partners, to-wit, Clarence H. Davenport, sold and assigned all his interest in each of said contracts to Henry W. Rokker, of which sale and assignment said Commissioners of State Contracts then and there had notice.” The answer admits that the contracts were made by the Commissioners of State Contracts with the petitioners and Clarence H. Davenport, under the name of H. W. Bokker & Co. There is no opportunity allowed Clarence H. Davenport to say whether the allegation that he sold and assigned his interest in the contracts to Henry W. Bokker, is true, and therefore, if, to-day, Bokker, Bees and Strattan may have a judgment that the money due on these alleged contracts be paid to them, why may Davenport, to-morrow, not have a judgment that precisely the same money be paid to him ? A majority of partners have no more right to appropriate a partnership name to their use than a single partner has the right to appropriate it to his use; and so it would be just as lawful for Clarence H. Davenport to file a petition to enforce these contracts in his name, alleging that Bokker, Bees and Strattan had sold and assigned their interests to him, as it is for these petitioners to proceed as they do. The State has no interest in the subsequent contract between the partners, and it can not be involved in any controversies that may arise thereupon between them. Its contracts, if with anybody, were with all the partners, and the question of its liability must be adjudicated with all, and it is therefore not bound to answer a part, only. It is also further, in substance, alleged, in the answer, that on or about the 6th day of September, 1886, Henry W. Bokker, Fred Gehring,- Phillips Bros., (including D. L. and J. L. Phillips,) Frank Hudson, Jr., Thomas S. Pinckard, Thomas W. S. Kidd, Charles Edwards, Clarence H. Davenport, Thomas Bees, and Charles T. Strattan, formed a combination, in the form of a partnership, under the firm name of H. W. Bokker & Co., and that the contracts here sought to be enforced, were, in fact, made by all these persons, under the firm name of H. W. Bokker & Co. These allegations are involved with other allegations charging conspiracy, etc., but they are distinct, and their truth is admitted by the demurrer. What has been said with respect to the omission of Davenport as a party, applies with equal force to the omission of these additional partners. If a part of the members of a firm may allege a contract like those here involved, with themselves alone, omitting the names of the other members of the firm, who were, in fact, also parties to it, and have it enforced for their benefit, it must be obvious that the omitted members of the firm may do precisely the same thing,—and so, to protect the State against a double liability in such cases, it is indispensable, when it is made to appear that those seeking to enforce the contract are only a part of the firm with whom it is made, that relief be denied. It follows, that, in our opinion, the court below erred in overruling • the demurrer. Inasmuch, however, as the errors indicated may be obviated by amendments to the pleadings, we deem it advisable to go further, and give our opinion upon other questions that have been discussed in the arguments before us, and which will necessarily arise again upon a trial of the case. The contracts sought to be enforced assume to be executed, on behalf of the State, by the Secretary of State, Auditor of Public Accounts, Treasurer and Attorney General. These offices are created by the constitution, but that instrument confers no" power upon the incumbents to act as a .corporate or quasi corporate body, nor to bind the State by their contracts, as such; and from the nature of the duties devolved upon them separately, it is obvious that the incumbents have no inherent power to act in that respect. The- power, then, claimed by the petitioners to have been exercised by these officers must be a naked power, uncoupled with any .interest, and purely statutory. The rule is, those dealing with persons exercising a special statutory power are charged with knowledge of the statute, and they are bound to know, at their peril, the extent of the power conferred. Parr v. Village of Greenbush, 72 N. Y. 463; Bishop on Contracts, (enlarged edition,) sec. 992. The law requires that every prerequisite to the exercise of such- a power, as stated in the statute, must actually precede its exercise. (Williams v. Peyton’s Lessee, 4 Wheat. 79.) And on these principles it has been held, that where the charter or incorporating act requires officers of the city to award contracts to the lowest bidder, a contract made in violation of its requirement is illegal, and in an action brought on such contract, for the work, the city may plead its illegality in defense. Dillon on Mun. Corp. (1st ed.) 388, and cases cited in note 1, and Parr v. Village of Greenbush, supra. And it is manifest, from the language employed, that it is intended by our constitution that this rule shall be rigidly applied to contracts assuming to bind the State, for it provides, (sec. 19, art. 4,) that “the General Assembly shall- never * * * authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void.” We must, then, inquire, were these alleged agreements or contracts made ‘’with express authority of law ?” And it has just been shown, that in order that this shall be answered in the affirmative, it must appear that each substantial thing required by the law to be done in the making of such agreements or contracts, was done in the manner and order therein required. It is provided by section 25, of article 4, of the constitution, that “the General Assembly shall provide, by law, that the printing, binding * * * the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract, to the- lowest responsible bidder; but the General Assembly shall fix a maxipaum price. * * * But all such contracts shall be approved by the Governor, and if he disapproves the same, there shall be a re-letting of the contract, in such manner as shall be prescribed by law.” The General Assembly, for the purpose of executing this section, enacted a statute, which was approved on the 31st of March, 1874, and which took effect on the 1st day of July of that year. (Rev. Stat. 1874, p. 993.) The first section declares “that the Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts, shall be [ex officio) Commissioners of State Contracts, ” and further directs the manner and time of their organization as a board, and the manner of calling meetings, etc. The second section reads thus: “The furnishing of all fuel, stationery and printing paper for the use of the State, and the copying, printing, binding and distributing the laws and journals, reports, and all other printing and distributing ordered by the General Assembly, shall be let by contract, to the lowest responsible bidder, in the manner hereinafter provided.” Section 3 directs the way in which advertising for bids shall be made. The fourth section directs how bids shall be made. The fifth section directs that the contract shall be awarded to the lowest bidder, but gives the commissioners power to reject bids, and provides that no contract shall be made without the Written approval of the Governor. The ninth section provides that “any person who shall offer or pay to any person any money or other valuable thing, to induce such person to not bid for a State contract, or as a recompense to him for not having bid for such contract, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the penitentiary not longer than three years. Any person who shall accept any money or other valuable thing for not bidding for a State contract, or who shall withhold a bid in consideration of a promise of the payment of money or other valuable thing, shall be guilty of a misdemeanor, and on conviction thereof shall be imprisoned in the penitentiary not longer than three years.” The sixteenth section fixes maximum rates, and declares that they are the highest prices which shall be paid for printing, under the act. The twenty-first section provides for the appointing of a printer expert, and defines his duties in aid of the commissioners, etc. The other sections are not thought to have any pertinency to the questions now before us. “Letting by contract, to the lowest responsible bidder,” necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to compete at the bidding. No one may be compelled to bid at such a letting, but there must be entire fairness and freedom in competition > and no one can, within the meaning of the provisions of the constitution and statute quoted, claim to be the lowest bidder, where others, who otherwise would have bid, are, by an arbitrary arrangement to prevent competition, kept from bidding. The manifest purpose in requiring the contract to be let to “the lowest responsible bidder,” is to protect the State against imposition and extortion; but if contractors may combine and prevent competition by violence, or by buying off competitors, the State will have no protection, and the requirement will be valueless,—a mere dead letter. It is not claimed that there is constitutional or' statutory authority, other than that quoted, whereby power is vested in the Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts, to make contracts binding the State. It would, therefore, seem clear, that, under the authorities previously referred to, an indispensable condition precedent to their power to contract is, that there shall be a public letting in which there is entire freedom of competition, and that the person with whom they contract was at that letting the lowest' responsible bidder. A lower bid might, undoubtedly, be rejected by the commissioners for the reason that the bidder is not responsible, for in this respect they have to exercise an independent judgment; • but in respect to the letting they can only do what the statute says. They can no more contract with one who is not the lowest responsible bidder, than they can contract without advertising for bids. That the letting must be one at which there shall be entire freedom in competition, is placed beyond doubt by the provisions of the ninth section of the act ut supra, by which, we have seen, it is made a misdemeanor, punishable by confinement in the penitentiary, for any person to pay, or offer to pay, money or other valuable thing to another to induce him not to bid for a State contract, or as a recompense to him for not having bid for such contract, or for any person to accept money or other valuable thing for not bidding for a State contract; and by the 46th section of the Criminal Code, (Rev. Stat. 1874, p. 358,) whereby it is among other things enacted, that “if any two or more persons conspire and agree together * * * to prevent competition in the letting of any contract by the State, * * * or to induce any person not to enter into such competition, * * * they shall be deemed guilty of conspiracy, and every such offender * * * shall be imprisoned in the penitentiary,” etc. Counsel for defendants in error, however, contend, that inasmuch as these sections do not expressly declare that contracts made in violation of their provisions shall be void, and as the penalties which they declare are not on the making of such contracts, but on the persons doing the things prohibited, they can not be resorted to for the purpose of establishing the invalidity of these contracts. It is, in considering this contention, pertinent to keep in mind the distinction between contracts where the contracting parties have an inherent power "to contract, and contracts where, as here, there is no inherent power to contract, but the contract is purely by virtue .of a special statutory authority. In the former instance, the contract is presumed to be lawful, and it devolves upon those who claim its invalidity to show that it is unlawful.' But in the latter instance, as we have heretofore shown, precisely the reverse is held. The burden there is upon those seeking to enforce the contract to show that it is within the statutory authority. It is, therefore, not upon these plaintiffs in error, in the first instance, to establish the invalidity of these contracts, but upon defendants in error to establish their validity,—in doing which, as we have seen, an indispensable step is, that they were the lowest responsible bidders. These sections, under a familiar rule of construction, must be construed as in pari materia with the other sections of the statute referred to supra. They impose severe and degrading penalties upon those who do the designated acts to prevent freedom of competition at the bidding. The imposing of such penalties is now construed as equivalent to a prohibition of the denounced acts, although it may have been formerly held otherwise. Metcalf on Contracts, p. 258; Pollock’s Principles of Contracts, (Wald’s ed.) p. 261; Wharton on Contracts, sec. 365. And so we must read the language requiring that the letting shall be to the lowest responsible bidder, as followed and explained by the language of these sections, as prohibiting, at the bidding, the things for the doing of which the penalties are imposed, and hence, if that which is thus prohibited was done, the letting was necessarily void. (See authorities supra.) A party can not be entitled to enforce an agreement which he induced the adverse party to enter into, only by doing that which subjected him to punishment by confinement in the penitentiary. No case decided in recent times goes to that extent. Greenhood on Public .Policy, rule 471, p. 546. We entirely concur with counsel for defendants in error, that the mere formation of partnerships for the purpose of obtaining contracts under this statute, is not necessarily prohibited ; but such partnerships must be formed in good faith, for the more convenient and successful doing of the- particular work or carrying on of the particular business to which they are de-„ voted, and not for the purpose of preventing competition in bidding. All of the authorities are in substantial accord that no one can derive rights under a contract made for the purpose of preventing competition in bidding. Hamilton v. Hamilton, 2 Rich. Eq. 355; James v. Fulcrod, 5 Texas, 512; Dudley v. Little, 2 Ohio, 504; Jones v. Caswell, 3 Johns. Gas. 29; Thomson v. Daviess, 13 id. 112 ; Gibbs v. Smith, 115 Mass. 592; 1 Story’s Eq. Jur. sec. 293. And this applies with like force to public as to private contracts. (Weld v. Lancaster, 56 Me. 453; Swan v. Chorpenning, 20 Cal. 182; Greenhood on Public Policy, rule 175, p. 183.) It may sometimes be difficult to ascertain the motives controlling in the formation of the partnership; but this affects only the question of fact in the particular case. An argument is sought to be drawn against the necessity of a strict observance of the requirement that the contract shall be let to the lowest responsible bidder, from the facts that the statute also requires that no contract shall be made without the written approval of the Governor; that maximum rates are fixed in the statute, and that the?bidding is to be supervised by an expert printer, etc.; and that, from the nature of the case, if the bidding was supervised by the expert, the amount bid was less than the maximum rate, and the contracts were approved by the Governor, the State should be concluded. But the statute merely directs these as successive steps in the execution of the contracts, and makes no provision that either or all shall be conclusive. Plainly, they are intended as distinct and successive safeguards to protect the State against imposition and extortion. Where the provision of the statute is the essence of the thing required to be done, and by which jurisdiction to do it is obtained, it is held to be mandatory. Rex v. Locksdale, 1 Burr. 447; Marshall v. Langworthy, 6 Hill, 646; Stuker v. Kelly, 7 id. 9; People v. Schemerhorn, 19 Barb. 558. Although the commissioners may have assumed the contracts to be valid, since they were made, and done acts upon the faith of that assumption prejudicial to these defendants in error, if their legality be now denied, the question of the validity of the contracts is still open. “The State is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real,—the conclusive presumption that his. powers are known rendering such a consequence impossible.” Bishop on Contracts, (enlarged ed.) sec. 993, and authorities there cited. It is insisted that' the answer is defective in not specifically charging the doing of acts prohibited, which render the contracts void. There is more of generality of statement, and less of precision of specific violation of law, than we could desire ; still, on a'general demurrer, we are not prepared to hold that the answer should have been held insufficient on this ground. These facts are distinctly alleged, namely: First, that the persons named formed a combination, in the form of a partnership, under the firm name of H.- W. Bokker & Co., for the purpose of preventing their competing with each other in bidding for this printing; that the bids were made, and that the contracts were thereafter entered into, pursuant to that purpose; second, that the petitioners and Davenport paid to Grehring, Hudson, Phillips Bros., Kidd, Edwards and Pinckard, $1000, as the consideration of their entering into the combination and refraining from competing at the bidding. The entering into an agreement or contract to not compete in bidding, implies that the-parties would have competed but for that agreement or contract. It would clearly be sufficient, under the sections of the statute quoted, to prove, under the one section, the payment of money or other valuable thing to induce a person "not to bid; and under the other, to prove that two or more persons agreed with each other that they would not compete at the bidding. The criminal intent would be inferred from the act proved, and the burden would then be upon the party charged to introduce evidence to remove that presumption. So, here, in our opinion, if the facts alleged, as above stated, were proved, the presumption would arise that the parties would otherwise have competed at the'bidding, and that they were by those facts prevented from doing so. And we do not perceive why, on a general demurrer, it is indispensable that the allegations in an answer of this kind shall be more specific "than the proofs required. The judgment is reversed, and the cause remanded. Each party will have leave to amend pleadings to correspond with the views herein expressed. Judgment reversed.