Montana Attorney General Opinion 16-222

Opinion No. 222. Counties-Printing, Period of Con- tract-County CommisSioners, Discre- tion-lUandamus-Offices and Officers. HELD: 1. While mandamus may 230 OPINIONS OF THE ATTORNEY GENERAL be invoked to compel the exercise of discretion of public officers, it can- not compel such discretion to be ex- ercised in a particular way. 2. The Board of County Commis- sioners has the right to fix the period of the printing contract for such time, not over two years, which the board deems for the best interests of the county and it cannot be compelled in a mandamus action, against its bet.- ter judgment and will, to let a con- tract for the maximum of two years. Mr. Carl Lindquist County Attorney Scobey, Montana January 8, 1936. You have submitted the questlon whether the Board of County Commis- sioners of Daniels County, is com- pelled to enter into a contract for the county printing for a period of two years, or whether the board has dis- cretion to make a contract for a les- ser period. The essential facts are substantially and briefly as follows: No contract for the county printing now exists. The Daniels County Leader is the only newspaper in the county which has "been printed and published continuously in the county for at least one year preceding the awarding of the contract," and hence at the present time, is the only eli- gible bidder for the county printing. The Daniels County Free Press, an- other newspaper, was established last October and cannot become eligible to bid until one year has expired. The commissioners have offered to let a contract to the Leader for ten months, or one year. The Leader, however, has refused to offer any bids or to make any contract for such pe- riod but has bid, or has offered to contract for not less than two years. It contends that its bid or offer must be accepted and that the county is re- quired to enter into a contract for a period of two full years. Evidently the county commissioners desire to make a contract only for the time intervening before the Free Press shall also become eligible to bid, which will be in October, 1936. The board will then be free to enter into a contract with either newspaper upon competitive bids being sub- mitted. On the other hand, it is evi- dent that the Leader desires to have a contract for the longest possible time so that it will not be required to enter into competitive bidding for the coun- ty printing until 1938. The question submitted involves the construction of Section 4482, R. C. M. 1921, as amended by Chapter 10, Laws of 1929, which reads: "It is hereby made the duty of the county commissioners of the several counties of the State of Montana to contract with some newspaper, print- ed and published at least once a week, and of general circulation, printed and published within the county, and having been printed and published continuously in such coun- ty at least one year immediately preceding the awarding of such con- tract, to do and perform all the printing for which said counties may be chargeable * * * at not more than the following prices: (Here follows list of maximum prices.) "The contract shall be let to the newspaper that in the judgment of the county commissioners shall be most suitable for performing said work, * * *. No such contract for printing shall extend for a period of more than two years. * * * " The Leader relies upon Woare v. Board of County Commissioners, 70 Mont. 252, 225 Pac. 389. In that case the Supreme Court had before it a case where price instead of the time, or the period of the contract, was in- volved. There were two newspapers in the county, one eligible to bid and the other ineligible because it had not been printed and published in the county continuously for one year. The eligible newspaper made a bid which was higher than the bid of the ineli- gible newspaper. In a mandamus ac- tion against the board, the court held that the county commissioners were required to accept the higher bid of the eligible newspaper and to award (he contract to it. It is contended on behalf of the Leader that since the county commis- sioners have no discretion in regard to price that likewise they have no discretion in regard to time, or the OPINIONS OF THE ATTORNEY GENERAL 231 period the contract has to run. This argument is based on the theory that both price and time are subject to competitive bidding and that if a newspaper, in the absence of compe- tition, can force the county to accept the maximum as to price, in the ab- sence of competition it can likewise force the county to accept the maxi- mum as to time. In this contention we are unable to agree. The matter of price is the sub- ject of competitive bidding but the matter of time is not. In regard to price, the commissioners have no dis- cretion. They must accept the lowest bid of the eligible bidders, as was held in the ',"oare case. This is only a min- isterial duty. (Stange v. Esval, 67 Mont. 301, 215 Pac. 807.) In the W oare case the commissioners called for bids on a contract, the time limit of which was previously fixed by the commissioners. The newspapers there- upon submitted bids. Nothing re- mained for the commissioners but to determine what papers were eligible to bid and the lowest bidder. These were questions of fact not requiring the exercise of any judgment or dis- cretion, since such discretion as they possessed had already been exercised when they called for bids on a con- tract for a definite period. It must be admitted that in the first instance and before they called for bids and bids are submitted, the com- missioners have the right to name, according to their best judgment, the period for which the contract shall extend and to call for bids or seek a contract in accordance therewith. When they have chosen such period, according to their best judgment, they have exercised their discretion and they cannot be required to choose some other period. That question has been finally disposed of unless, of their own volition and according to their best judgment, the commission- ers choose to re-open it. If there are no bidders on the contract which the commissioners have decided to make, it is no fault of the commissioners as they have discharged their duty. The only eligible newspaper, by refusing to bid and enter into a contract, can- not force the commissioners, against their better judgment, to submit bids for a different contract over a longer period of time. While mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in a particular way. (38 C. J. 595.) See note 55 and the many cases cited therein, including many Montana cases. In State v. District Court, 89 Mont. 531, 300 Pac. 235, the court said: "Among these tests is the well-established rule that man, damus lies to compel action, but not to control discretion (State ex reI. Stuewe v. Hindson, 44 Mont. 429, 120 Pac. 485; State ex reI. Scollard v. Board of Examiners, 52 Mont. 91, 156 Pac. 124), and, in its application, it is undoubtedly the general rule that a court has no power by writ of man- date to compel a subordinate judicial officer to reverse a conclusion already reached, to correct an erroneous de- cision, or to direct him in what par- ticular way he shall proceed or shall decide a special question." In the Woare case (1) the commis- sioners determined the question of time; (2) they called for bids; (3) bids were submitted; (4) the commis- sioners were required to accept bids made in accordance with their call, which, as we have said, was a min- isterial act and involved no discretion. In this case the newspaper seeks to reverse the process by (1) ignoring the commissioners' call or offer to contract for ten months or a year; (2) the newspaper then proceeds to exer- cise the discretion vested in the coun- ty commissioners by deciding for what period of time the contract shall run; (3) it submits bids accordingly; and (4) it would force the county to ac- cept its bid and make a contract ac- cording thereto. This procedure er- roneously assumes that both the price and the time are subject to competi- tive bidding, whereas the statute gives to the commissioners the right and power to name the time. Our construction of this statute has at least some support in the Woare case. The county on appeal there raised the question that the commis- sioners had a certain discretion as to the period to be covered by the con- tract and that the judgment of the lower court deprived them of such dis- cretion. Counsel for the newspaper, in meeting this argument, did not deny that the commissioners had such 232 OPINIONS OF THE ATTORNEY GENERAL discretion as to time nor did the court hold the argument of the county in- valid although it might have done so. The court, assuming rather that this was a valid argument, said the "rec- ord" before it did not disclose the time for which the call for bids was made. We believe the construction we have placed upon the statute is in line with the intention of the legislature and is in the interest of the public welfare since it permits greater competition in county printing. This. we believe, is the purpose of the law. This ir,- terpretation gives effect to the sound and wholesome policy of requiring public officers to submit contracts for competitive bidding whenever it is possible to do so. It is reasonable to suppose, too, that the legislature, in requiring a newspaper to be printed and published at least one year con- tinuously in the county before being eligible to bid, thus wisely securing the employment of local labor (State v. Board of County Commissioners, 77 Mont. 316, 250 Pac. 606), intended that where good judgment and public policy require it, the county commis- sioners :;;hould have power to fix the time of the contract so that it would not extend unreasonably beyond the period of ineligibility of a legitimately competitive newspaper. It is conceivable, of course, that up- on bidding for a shorter term, particu- larly where there is no competition, a newspaper might charge a great price. This possible disadvantage, however, is offset by the advantage of having actual competition at an ear- lier date in the future. It is within the discretion of the commissioners to determine which course would be the more advantageous to the county to pursue. In arriving at our conclu- sion in regard to the law, we must not be understood as expressing an opin- ion as to the wisdom of the action of the board as that is not a question within our province to determine. We are concerned only with the question of power vested in the county com- missioners. For the foregoing reasons, it is my opinion that the board of county com- missioners has the right to fix the period of the printing contract for such time, not over two years, which the board deems for the best interests of the county and that it cannot be compelled, in a mandamus action, against its better judgment and will. to let a contract for the maximum of two years.