State ex rel. People's Land & Manufacturing Co. v. Holt

Dodge, J. Of course the relator has no contract right resulting from its tendering hid in response to notice expressly reserving right to reject any or all bids. 1 Page, Cont. § 26; Topping v. Swords, 1 E. D. Smith, 609; Howard v. Maine Ind. School, 78 Me. 230, 3 Atl. 657; Leskie v. Haseltine, 155 Pa. St. 98, 25 Atl. 886; Anderson v. Public Schools, 122 Mo. 61, 27 S. W. 610. Hence, if the recipient of the bids were a private -individual, any attempt to predicate rights upon such transaction must fail. Relator contends, however, that a clear public duty is imposed by law upon the respondents to enter into contract with the lowest bidder, and therefore mandamus should issue to compel such action. There is much authority against the right of a mere bidder to invoke such remedy, since the respondents’ duty imposed by law, whatever it is, is so imposed for the welfare of the public and not for protection of the would-be contractor. State ex rel. Phelan v. Board of Ed. 24 Wis. 683; People ex rel. Belden v. Contracting Board, 27 N. Y. 378, 382. Passing such question, however, is there any clear public duty whatever imposed by law upon the common council to enter into a contract for street lighting with the relator ? The only provision suggested is that “all work for the city . . . shall be let by contract to the lowest reasonable responsible bidder.” Sec. 1, subch. XIY, ch. 56, Laws of 1882. But this is contained in a charter which confers upon the common council all the usual authority and duty to consider and control questions of policy in municipal affairs. Among these [135] questions is that of street lighting; -whether the streets shall be lighted at all; what expense can properly he incurred for such purpose; what means shall he employed; whether desired results can best he accomplished by contract or by municipal agency, and many other details. In considering and deciding such subjects the common council is within its legislative function where courts neither will nor can guide or control it. State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046; State ex rel. Att'y Gen. v. Frost, 113 Wis. 623, 655, 88 N. W. 912, 89 N. W. 915; Madden v. Kinney, 116 Wis. 561, 569, 93 N. W. 535; Tilly v. Mitchell & L. Co. 121 Wis. 1, 10, 98 N. W. 969; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; People ex rel. Ackley v. Croton Aq. Board, 49 Barb. 259; Grant v. Common Council, 91 Mich. 274, 91 E. W. 997. So far as appears by the relation, none of these questions of policy have yet been decided. The taking of bids upon any one of several plans may well be merely to acquire information as to feasibility or cost of that plan as a basis for intelligent decision whether that or some other is most for the public good. The council, having ascertained the price at which it can obtain are lights by contract, owes to the public the duty to consider whether some other type of lights or of illumination may not be for public benefit; also whether the city might not better install its own lighting plant. If the present application for imperative mmdamus were granted, all these questions of policy, for three years at least, would be foreclosed. The court would have decided upon that which the constitution places within control of the legislature. This we cannot do, nor can we inquire into the motives which- actuate legislators in the performance of their functions as such. Eor these reasons there is obviously as yet no clear duty imposed, upon the council by law to make contract at all, hence, of course, none to enter into one with the relator, however obvious the want of authority to contract with any other bidder. By the Court. — Judgment affirmed.