페이지 이미지
PDF
ePub

the city council, could refuse to discharge, other hand, if the public right or duty affects their plain duty in the premises, and take the people at large or the people of a particular refuge behind an official discretion reposed in people, such as voters or taxpayers, any one governmental district, or a particular class of them, but which, in fact, they failed and re- of the people at large or of the district affected, fused to exercise. or any member of the class in question, may en

ever, that not only did Aldermen Storr and Bender, out of regard to their duty as public servants, refuse to join their political colleagues in the action which they took, as appears above, but that Mayor Dreyer, though here appearing as an appellant, did not sanction the same, but advised against it, saying that they "should place honor before politics."

In this connection it should be said, how-force the right or compel performance of the duty, regardless of any special or peculiar interest apart from that common to the general public. The true distinction seems to be that, where the right or duty in question affects the from the people at large, the proceedings must state in its sovereign capacity, as distinguished be instituted by the proper public officer; but that, if the general public, as distinguished from the state in its sovereign capacity, is affected, any member of the state may sue out the writ. However this may be, it is unquestionably the law that, if a private individual has a special and peculiar interest in the enforcement of a apart from the interest that he has as a mempublic right or the performance of a public duty ber of the people at large, he is entitled to protect or enforce it by mandamus." 26 Cyc. 401– 404.

IV. It is further urged that the relator has here "no contractual, vested, or specific right that he can enforce in a court"; and that mandamus will not lie at his instance to compel the contract to be awarded to him. As to this appellant places great reliance upon Anderson v. School Board, supra. But that, as we have said above, was an action for the recovery of profits, upon the theory that a contractual relation arose from the advertisement for bids and the submission by plaintiff of the lowest bid. The case is not authority, we think, in support of appellant's contention that the relator has here no standing in court to maintain this proceeding. And the case of Coquard v. School Board, 46 Mo. App. 6, was an action of like character, and proceeded upon the same theory.

In Colorado Paving Co. v. Murphy, supra, cited by appellants, it was held that the complainant, the lowest responsible bidder for a contract for public work, had no such vested or absolute right to a compliance with the statutory provisions in question as to entitle him to maintain an injunction for their violation by public officials. And to like effect is U. S. Wood Preserving Co. v. Sundmaker, 186 Fed. 678, 110 C. C. A. 224. But these cases are not persuasive upon the proposition that the relator has no standing in court in a mandamus proceeding such as is before us, particularly in view of what appears to be the well-established rule in cases of this char

acter.

Appellants' contention is that the ordinance provision requiring contracts of this character to be let to the lowest and best bidder is intended for the benefit of the taxpayers of the city of Hannibal; that the duty sought to be enforced is a public duty, and can be enforced only by a member or members of the body politic interested, as such, in its enforcement.

As to who may maintain a proceeding to compel the performance by public officers of a duty of a general character such as that here involved, it is said:

"In some jurisdictions the proceedings must be instituted by the proper public officer, and a private individual is not entitled to the writ, unless he has a special and peculiar interest in the enforcement of the right or the performance of the duty apart from his interest as one of the

[7] It appears to be well established that, though the duty sought to be enforced is of a public character, nevertheless, if the person applying for the writ has a special, peculiar interest in its performance, he may maintain the proceeding. That in such instances the action may proceed at the relation of such private person is well supported by the autho ties. See Robbins v. Ry. Co., 100 Me. 496, 62 Atl. 136, 1 L. R. A. (N. S.) 963; Weeks v. Smith et al., 81 Me. loc. cit. 544, 18 Atl. 325; People v. State Auditors, 42 Mich. loc. cit. 429, 4 N. W. 274; Pumphrey v. Mayor, etc., 47 Md. 145, 28 Am. Rep. 446; State ex rel. Tarr v. Mayor, etc., 32 Neb. 568, 49 N. W. 272; People v. Commissioners, etc., 4 Neb. loc. cit. 161; Windsor v. Polk County, 115 Iowa, 738, 87 N. W. 704; State v. Commissioners, 39 Ohio St. 188; People v. Contracting Board, 46 Barb. (N. Y.) 254; State ex rel. v. Bourne, supra; 13 Encyc. Pl. & Pr. 636; 26 Cyc. 401, 404. But where a private citizen seeks to enforce the performance of an official duty to protect a private right, it must appear that he has a special interest in its performance, and that he will be injurlously affected if such duty be not performed. See State ex rel. v. Wilson, 158 Mo. App. 120, 139 S. W. 705.

the relator must have a clear right to the per"It is a principle of the law of mandamus that formance of the act sought to be coerced by the mandate of the court." State ex rel. v. Thomas, 245 Mo. loc. cit. 71, 149 S. W. 319.

But here we think the relator has such right. There were but two bidders; and, as the court found, these were the only possible bidders for the work in question. There was no possible ground for any just distinction to be made between them, other than as to price, by reason whereof the city council could, in the exercise of a sound discretion, find one to be a better bid than the other, though vastly higher.

What was said in State ex rel. v. Bourne, supra, applies here with much force. Indeed, the facts of this case make it a much stronger one of palpable abuse of discretion,

than the Bourne Case, where the peremptory writ was awarded in favor of a private relator.

Entertaining these views, we are of the opinion that the judgment of the trial court should be affirmed, and it is so ordered.

NORTONI, J., concurs. REYNOLDS, P. stituted as parties are in our country, dividJ., dissents, expressing his views in a sep-ed into parties as our people are, it is but arate opinion. human nature that the representatives of a party, vested with power, should be inclined But this must to favor their own party. only be done in a lawful and fair way. If

the idea is to advance the interests of the party, we should be mindful of the maxim, if it may be classed as such, "He serves his party best who serves his country best." Surely nothing could advance the interests of a party more effectively than that its representatives, when in power, are economical and wise in the use and application of the people's money, for it is the money of the people that is to be here paid out, and no more of it should be expended than reasonable, and absolutely necessary to secure adequate and efficient results. So that entirely lacking in sympathy with the spirit which animated this body, as set out in the resolutions drawn up by its finance committee, I would not hesitate to undo its work, and direct it to make the award to the relator, if I thought we as a court had power to do

that.

REYNOLDS, P. J. I am unable to concur in the opinion of the majority of the court in this case, and dissent on two grounds.

I do not think that by mandamus we have the power to command the Mayor and Board of Aldermen of the city of Hannibal, vested with discretion in the matter of passing upon bids for the city printing, in the exercise of that discretion, and particularly in directing them, as does the order issued by the learned trial court, to award the contract of printing to the relator, "and enter an order of record in the record and proceedings of said Council, showing that said contract and printing was awarded to relator at the rates named in the said bid, and that a contract was ordered executed accordingly, and that a rejection has been made of the bid of defendant Courier-Post Publishing Company and accept from relator a good and sufficient bond, as required by law and ordinance, and enter into a contract in writing with relator in accordance with its bid and as required by law and ordinance." I think that making such an order is such a clear case of usurping not only the power of discretion lodged in the city authorities but in attempting as a court to enter up orders which can only be done by the municipal body when duly convened, that I am unwilling to agree that we can go that far in any case. The general law on this is stated by our Supreme Court in State ex rel. Best et al. v. Jones et al., 155 Mo. 571, loc. cit. 576, 56 S. W. 307, 309, thus:

advanced by the committee of the city council and adopted by the majority of that body, for rejection of the one bid and acceptance of the other, that is to say, a purely political, party, reason. That reason is not only inherently unsound but proceeds upon a very mistaken idea of party duty. Con

However much we may condemn the motive which in part governed the officers clothed with discretion in the exercise of that discretion, absent fraud, we cannot, as a court, in passing upon that act, afford to violate settled principles which lie at the very foundation of the exercise of our power in awarding mandamus, and substitute our own discretion for theirs. To do that is to commit a wrong on our part amounting to judicial usurpation. As said by our Supreme Court in State ex rel. Best v. Jones, supra,

the court will command the exercise of dis

"Where a discretion is vested in a public officer the courts will by mandamus compel the officer to exercise that discretion, but will not direct how it shall be exercised or what conlusion or judgment shall be reached."

cretion, but will not direct how it shall be exercised. Nor do I think it entirely within the facts as disclosed by the testimony to say that the political motive was the sole motive. When we can infer a right motive

See, also, 26 Cyc. p. 158, par. 3; also, page we should do so, if motives are to be consid188. ered.

If the act of the city authorities rested on one reason alone, it could not be justified, not holdling, however, that we have the power, by mandamus, to undo their act.

This ruling of our Supreme Court in the above case is its latest on the matter and I think it not only controlling but conclusive. In a measure this case before us has become a moot case, for by the terms of the bid the contract was to be for one year and that year will have expired in August of this year; in fact, on respondent setting that up, we, on his motion, advanced the hearing of this appeal; but the principle here involved is of sufficient importance to demand that the case be correctly adjudged.

There can be no two views, to my mind, of the absolute impropriety and fallaciousness,

But there is more reason given in the report of the committee and the action of the council than the utterly untenable political reason. It is specifically recited in the report of the committee and as adopted by the council, that:

"In all advertising one must consider the medium used. In the matter of the city publication we want the greatest publicity; for is due all the people. Such being the case, we complete information of the council's action

lowest and best, not from the mere amount stated in the bids, and we find, in our judgment, that, taking into consideration all the points of view, that the Courier-Post is the best medium to convey this information to the citizens and has the largest circulation, we believe, and the Courier-Post's is the lowest and best bid."

In so far as this reason is concerned, the award to the Courier-Post was entirely within the limit of power of the council. Acting on that ground, it cannot be said that its discretion was unduly exercised and is subject to control by the courts either by mandamus or in any other proceeding. Granting that the council was also governed by a wrong and improper motive in making this award, is that to overturn its action when also founded on a lawful reason. No one challenges its right in their discretion to make an award. Is that right to be destroyed because one of the motives was wrong? I cannot bring myself to believe that one of the motives being wrong destroys the power to exercise discretion in making the selection.

In Loewenberg v. De Voigne, 145 Mo. App. 710, 123 S. W. 99, we held that the motive with which an act was done, whether malicious or not, gave one no cause of action at law for damages, provided the act done was within the power of the party acting; that the state of mind of the person doing the act complained of does not affect the right to do it. Said Lord Halsbury, L. C., in Bradford Corporation v. Pickles, 1 App. Cas. (1895) 587, loc. cit. 594:

[merged small][ocr errors][merged small]

So it was said by our court, Judge Goode writing the opinion, in Holke v. Herman, 87 Mo. App. 125, loc. cit. 141. So our Supreme Court held in Anderson v. Public Schools, 122 Mo. 61, loc. cit. 67, 27 S. W. 610, 26 L R. A. 07, and Glencoe Land & Gravel Co. v. Hudson Bros. Commission Co., 138 Mo. 439, loc. cit. 445, 40 S. W. 93, 36 L. R. A. 804, 60 Am. St. Rep. 560.

and that as mediums of advertising to the public one was as good as the other. It is true that the finding of the court on the facts in the mandamus case is accepted by the appellate court and controls, if supported by substantial evidence. But we are not bound by his conclusions on the facts. The trouble with the application of that rule here would be to allow the discretion of the trial judge, if we affirm him, to be substituted for the discretion which is lodged by law in the city authorities of the city of Hannibal, for the council in its discretion found the higher bid the best, and for any such substitution I find no warrant whatever. The council assigns as a reason for selecting the CourierPost, that it considered it the better medium. It does appear by the evidence that in the city of Hannibal, with a population of about 18,500, or say 3,700, or even 4,625, families. the Courier-Post has about 2,350 subscribers and the Journal about 1,550, the former published daily, except Sundays, the latter daily, except Sundays and holidays.

The questions involved in our right to award mandamus here, are: Had the city authorities power to act upon their discretion? Have they so acted? Both these questions must be answered in the affirmative. So answered, the matter ends. The motives upon which they acted, absent fraud, have nothing to do with the act, present the right act.

The exercise of discretion may stand, if in exercising it the council was within its right, however wrong its motive, absent fraud.

It is said that the trial court found as matter of fact that there was very little difference in the circulation of the two papers,

The learned trial judge, it is true, found, as set out by my learned colleague, that both the printing companies were well equipped to do the work, and that each is of large and general circulation and efficient for the purpose of carrying notice to the citizens of Hannibal. But that ignores the difference in circulation, which the evidence reveals to be decidedly in favor of the Courier-Post. The learned trial court made no special finding on that. It is true his finding is not under the statute, and as I said in my dissenting opinion in Lesan Advertising Co. v. Castleman, 165 Mo. App. 575, loc. cit. 584 et seq., 148 S. W. 433, now pending on certification in the Supreme Court, has only the effect of a general finding. While the case is referred to in Barton Lumber Co. v. Gibson, 161 S. W. 357, and Skinner-Kennedy Stationery Co. v. Lammert Furniture Co.,1 a decision by our court not yet officially reported, and to both of which I agreed, the point involved in these cases was not that upon which I dissented in the Lesan Case. There I dissented to the proposition that a finding of fact by the trial court, none having been requested, had the effect of one made under the statute. I still adhere to that view. The conclusion of the majority in the Lesan Case makes the failure to find on the fact of circulation error.

That this fact of larger circulation figures conspicuously in the reason for the award, is clear. It is a sound one, for the lowest bidder is not always the best (2 Dillon, Municipal Corporations [5th Ed.] § 811; High on Extraordinary Legal Remedies [3d Ed.] § 92), and the fact of a larger circulation is generally recognized as a good reason for charging a higher price for advertising space.

I think the doctrine laid down by Mr. High is the better doctrine as to all cases of this character and is the one which has the support of an almost uniform line of authority, namely:

"That the duties of officers intrusted with, the letting of contracts for works of public improvement to the lowest bidder are not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of the courts by mandamus.'

Mr. High further says:

"And the true theory of all statutes requiring the letting of such contracts to the lowest bidder is that they are designed for the benefit and protection of the public, rather than for that of the bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus after it has already been awarded to another." High's Extraordinary Legal Remedies (3d Ed.) § 92.

That is the rule announced by our Supreme Court in State ex rel. v. McGrath, 91 Mo. 386,

3 S. W. 846; Anderson v. Public Schools, supra; Glencoe Land & Gravel Co. v. Hudson Bros. Commission Co., supra; State ex rel. Best v. Jones, supra.

In Anderson v. Public Schools, supra, it is said (122 Mo. loc. cit. 67, 27 S. W. 612, 26 L. R. A. 707):

"No claim is advanced in the petition looking to a recovery for fraud or deceit in making the proposals for bids. It is indeed asserted that the defendant rejected plaintiffs' bid, 'without cause, arbitrarily and capriciously, through favoritism and bias.' But if defendant had the absolute right to reject any and all bids, no cause of action would arise to plaintiffs' because of the motive which led to the rejection of their bid. The right to reject the bids was unconditional. Defendant was entitled to exercise that right for any cause it might deem satisfactory, or even without any assignable

cause."

It is true that this cause of Anderson v. Public Schools, supra, was not a mandamus but an action to recover damages for loss of the contract, and in that respect differs from the case before us, but the principle announced in it and contained in the language which we quote is as applicable here as there, and follows the general line of authority on mandamus. It is to be observed that in the Anderson Case there was a demurrer to the petition which asserted that the plaintiffs' bid had been rejected "without cause, arbitrarily and capriciously, through favoritism and bias." The demurrer admitted these averments. Even with these in, our Supreme Court held that it was not sufficient to overcome the discretionary power vested in the awarding body. It is to be observed in the case at bar, that while the word "fraud" is used in the petition and writ, there is no evidence of fraud; nor is there any pretense of any corrupt or even improper act on the part of the Courier-Post, who is the one who is to suffer for the benefit of its competitor; it is enjoined from claiming under the award. Nor is there any corruption, in the sense of pecuniary reward or benefit to the members of the city government shown to be present on their part. The action of the court rests on their act being without cause, arbitrary, capricious and through favoritism and bias. That is the most that can be said of one of the causes

tion and the awarding of the bid to one paper rather than to the other. It is distinctly held in this Anderson Case that with the presence of these factors the discretionary power lodged in the awarding body is not taken away. So say the Kansas City Court of peals in State ex rel. Montfort v. Meier, 142 Mo. App. 309, 126 S. W. 986, that court saying that the discretion being vested in the board to make an award, the courts would not interfere.

Reporting Anderson v. Public Schools, supra, in full, in 26 L. R. A. 707, 708, many

cases are cited to the effect that where a dis

cretion is lodged in the body as to the rejection or reception of bids that the lowest

bidder is not entitled to mandamus or injunction on failure to receive the award and cannot recover damages for failure to execute the contract, and it is said by the compiler that the cases cited fully sustain Ander

son v. St. Louis Board Public Schools that there is no cause of action even if the board

acted capriciously through favoritism.

In his work on Municipal Corporations, the late Judge John F. Dillon has said (volume 1, § 242 [5th Ed.]):

"Power to do an act is often conferred upon municipal corporations, in general terms, without being accompanied by any prescribed mode In such cases the common of exercising it. council, or governing body, necessarily have, to a greater or less extent, a discretion as to the manner in which the power shall be used. This discretion, where it is conferred or exists, cannot be judicially interfered with or questioned except where the power is exceeded or fraud is imputed and shown, or there is a manifest invasion of private right. Thus, where the law cal Legislature, power to determine upon the or charter confers upon the city council, or loexpediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting withtrolled by the courts. in the scope of their authority, cannot be conIn such case the decision of the proper corporate body is, in the absence of fraud, final and conclusive, unless they transcended their powers." (Italics those of Judge Dillon.)

[blocks in formation]

"In the absence of actual fraud, courts can

tion of city councils in determining what are and what are not suitable rooms for the purposes of the city and its officers."

While in the case at bar it is averred that the act of making this award was fraudulent, as before said, there is not a particle of proof of any fraud in the matter, using the word fraud, as it must be used, in its technical sense. The most that can be said against the action of the city council in preferring the one paper to the other as the medium of publication, is that it was governed by favoritism, partiality or prejudice, but none of these constitute fraud in the legal sense of that term, and in the sense in which that term is used by Judge Dillon, nor can it be said, in the light of the facts that there was a manifest abuse of the power. trial court himself found that both compet itors were well equipped to do the work and either would reach the public. Judge Dillon in his work above referred to also says (section 1488):

The

"The general rule is this: If the inferior tribunal, corporate body, or public agent or officer has a discretion, and acts and exercises it, this discretion cannot be controlled by mandamus."

He has further said (section 1482): "A writ of injunction belongs solely to a court of equity, and usually issues to prevent the doing of some specific act. Where mandamus is the appropriate remedy, it cannot be substituted by a bill in equity praying an injunction, as for example, an injunction to compel a municipality to levy a tax to pay a judgment against it,"

the author holding that mandamus and injunction are in their nature different remedies and in general are not concurrent or interchangeable.

In a way, the city council or governing body of the city is properly classified as one of the three great divisions of governmental power under our Constitution, that is to say pertains to the legislative branch of government, and as held in Albright v. Fisher, 164 Mo. 56, 64 S. W. 106, it is not within the power of the courts, as part of the judicial system of the state, to interfere in the functions of the legislative bodies of the state. Our court has no more power, in my judgment, to tell the city council of a given city what ordinances it shall pass or not pass, as here attempted, or what bids it shall or shall not accept, than it has power to tell the General Assembly of the state what laws it shall or shall not pass.

In State ex rel. Union Fuel Co. v. City of Lincoln, 68 Neb. 597, 94 N. W. 719, the Supreme Court of Nebraska held that the crucial question in determining cases of this kind is whether the city council in awarding the contract acted under a discretionary power invested in it or wholly ministerially, and it is held that where they are invested with a discretionary power their acts are not to be subject to the control of the courts.

the discretionary power is used through favoritism or party bias, it can be controlled by the courts. But I do not think that these rest on a solid foundation or that the weight of authority in our own state, certainly the weight of authority outside of our state, lies in that direction.

I know that there are some cases that seem

Reagan v. County Court of Iron County, 226 Mo. 79, 125 S. W. 1140, one of the latest cases before our Supreme Court on the question of interfering with the discretion lodged in a county court, I think is distinctly against the contention of the relator here. It is true that in the Reagan Case there was no question of good faith involved but the action was brought on the distinct claim of the violation of law in choosing one who offered a lower rate of interest (in point of fact hardly one-half of the rate offered by the other), rather than one who had offered a higher rate as county depositary, and while Judge Graves, in delivering the opinion does say that there is no charge of bias in the case, he most certainly does not decide that the presence of bias would have authorized the court to interfere by mandamus.

I do not think that the case of State ex rel. v. Public Schools, 134 Mo. 296, 35 S. W. 617, 56 Am. St. Rep. 503, controls this case. The facts are entirely different. Nor do I understand how that decision can be reconciled with the later decision in State ex rel. Jones et al. v. Best et al., supra, where, as before noted, it is said that discretion being vested in a public officer, the courts may,. by mandamus, compel its exercise, but cannot direct how it shall be exercised. That is just what the Supreme Court did in State ex rel. v. Public Schools and what is here proposed to be done.

That also is the trouble with the decision of the Springfield Court of Appeals in State ex rel. Bank v. Bourne, 151 Mo. App. 104, 131 S. W. 896. The court there, as did the circuit court here, striking down the act of the public body, an act done within its discretionary power, substituted what in the court's discretion, it considered to be proper action. So I do not consider either of these controlling in the face of what is said by the Supreme Court in State ex rel. Jones v. Best, supra. Moreover, in the Public School Case the action was by citizens having, as citizens, an interest with, bringing the action for, the benefit of their fellow citizens, and was not at the relation of one claiming a personal interest, as here, and seeking to enforce it. Here no citizens appear as such; no tax payer, as such, is complaining.

The case of Colorado Paving Co. v. Murphy, 78 Fed. 28, 23 C. C. A. 631, 37 L. R. A. 630, 49 U. S. App. 17, presents many features in common with the case at bar. It was an action by the contractor for an injunction, seeking to prevent the award of a contract to a party to whom it had been awarded, the plaintiff or petitioner claiming that

« 이전계속 »