State ex rel. Ross v. Robinson

[217] By the Court, Ewing, C. J. We shall treat this as a motion addressed to this court, in ’ the first instance, under the provisions of the code, and will consider only the motion and affidavit, and such portions of the briefs as relate to questions arising on the facts set forth in those papers. If Bennett, by failing to execute or deliver his bond as required by law, lost all right to the contract, and if all the facts stated in the motion and affidavit be true, were the state officers required by the law unconditionally to let the contract under the fourth proposal to the relator ? We think they were not. First. Because relator did not propose to do all the work, named in the fourth proposal, and required by law to be let in oife contract. Section third of the “act to provide for the state printing,” of May 15th, 1861, provides “that the printing of all bills for the two houses of the legislature, together with such resolutions and other matter as may be ordered by the two houses, or either of them, to be printed in bill form, shall be let in one contract. ***** The printing of the general and local laws and such joint resolutions as may be directed by the legislature to be printed therewith, shall be let in another separate contract.” Proposal number four, published and signed by defendants, s as follows: “ For the printing of the general and local laws, and such joint resolutions as may be directed by the legislature to be printed therewith, the price per thousand ems for the composition, and the price per quire of the paper; the laws to be printed in royal octavo form, on good small pica type, the pages to be of the same size and form as those in the laws of the territorial legislature of 1860, with similar marginal notes and index to the same.” The bid filed by the relator is as follows: [218] “ Topeka, December 9th, 1861. “ I propose to print the general and local laws for the second session of the legislature, as follows, per proposal number four: Composition, per one thousand ems, two dollars; press work per quire, twenty-five cents; paper, one dollar. “E. G. Ross.” It will be seen that the law imperatively requires that three classes of matter should be let in one contract — the general laws, the local laws, and such joint resolutions as the legislature might require to be printed with tlie laws. Proposal number four called for bids for that one cbntract for printing those three classes of matter, and prescribed the manner in which the work should be executed. Ross bid for printing the general and local laws, omitting mention of the joint resolution. We think the words, “ per proposal number four,” can only be construed as relating to the manner of executing the work, as set forth in the proposal, and not as including a class of matter distinct from the two classes expressly named in the bid. Defendants were not required to regard an equivocal bid, which, when accepted, would not plainly bind the bidder to do all the work named in the proposal. Could the state, had Ross’ bid been accepted, have recovered damages on the proposal and the bid, had he refused, to its injury, to print the joint resolutions ? We think not; and we think the state officers were at liberty, if not bound, to disregard the bid, as not responsive to the proposal, even had it been the most favorable, to the state, of the bids presented. Second. Because the law imposed on the state officers, in determining which bid should be accepted, a discretion which the courts have no power to control. Section second of the act aforesaid, provides that “ the said secretary, auditor and treasurer shall, in no case whatever, receive or take into consideration the bid of an irresponsible person; •provided, however, no person shall be deemed [219] irresponsible who shall tender to the executive officers, aforesaid, along with his bid, satisfactory assurance, subscribed by Ids proposed security, that he will execute the bonds required by the eleventh section of this act.” Section eleven of the same act provides that if the person whose bid shall have been excepted, shall not give the bond within ten days after such acceptance, “ then the contract shall be given to the next lowest bidder, who will give bond, as aforesaid.” It cannot, with good reason, be claimed that a bid which defendants were forbidden to receive and consider, as coming from an irresponsible person, or as not satisfactorily assured, at the first letting, should be regarded as the next lowest bid, after the first bidder failed. To ascertain who was the next lowest bidder, therefore, resort could only be had to those bids which they were authorized, in the first instance, to receive and take into consideration. And what bids were they ? Why, only the bids of those persons who were responsible, or who filed with their bid satisfactory assurance, signed by proposed securities. And whose duty was it to determine whether a bidder was responsible, or his proposed securities satisfactory ? It was the duty of defendants to determine, and on their own judgment. The relator filed his bid, but it does not appear that defendants took it into consideration at the letting, and the writ of mandamus is asked because they failed to do so. After-wards, when Bennett — who was the successful bidder at the letting — neglected to give bond within the time prescribed, we cannot command them to let the contract to the relator, because the bid may be one which the law forbade them to take into consideration, and whether it is such a bid depends on the result of the exercise of their judgment and discretion; not ours. The principle is familiar and unquestioned, and is [220] illustrated by so many authorities that it were superfluous to cite cases in support of it that mandamus will not lie to compel a public officer to do an official act, unless the act be ministerial and not discretionary. Motion overruled.