#### State ex rel. Lewis and Allen vs. Fairchild, Governor, and others, Building Commissioners, etc.

Mandamus: *Rules of Practice in Supreme Court.*“Building Commissioners,” *under chap.*59, *Laws of*1866 : *their powers in letting contract.*

X. Tlie board of building commissioners for completing tbe state capítol (chap. 59, Laws of 1866) had power to prescribe, in their notice of the letting of the contract, any reasonable formality to be observed by bidders ; as, that all proposals should specify the names of the sureties offered, with the written consent of the persons so named.

*1112. Parties whose proposals were not accompanied by any such written consent, were not entitled to have the contract awarded to them, although the lowest bidders, and although they “were present at the opening of the bids for the purpose of furnishing whatever securities were required,” and “responsible persons were present with them for the purpose of giving tneir written consent to the use of their names as sureties.”

8. Tinder the present rule of this court, *mandamus*proceedings must be commenced by a motion for an alternative writ, and not by a motion for a rule to show cause, etc.

APPLICATION for a *Mandamus.*

*Alden S. Sanborn*(with wbom wag *J. G. Hopkins,*of counsel), for the relators.

*The Attorney General, contra.*

Cole, J.

This was an order granted in vacation by a justice of this court, requiring the board of building commissioners for completing the state capitol to appear and show cause why a peremptory writ of *mandamus*should not issue out of this court, commanding them to award and let the contract for the building and completion of the rotunda of the state capitol to the relators, *Lewis*and *Allen.*This order was improvidently granted, being in violation of a rule of court recently adopted, which provides that cases of *mandamus*shall be commenced in this court only by the issuing of an alternative writ. In some cases the court has, on a rule to show cause why a *mandamus*should not issue, granted a peremptory writ, the rule performing the office of an alternative writ. But this practice is abrogated by the rule of court just referred to. The proper practice now is to apply for an alternative writ in the first instance. The rule of court likewise provides that this court will not issue an alternative writ in cases where the circuit court has concurrent jurisdiction, except where some good reason is shown why the application is not made to the circuit court. (See *112opinion in case of *State ex rel. Board of Education v. Haben,*ante, p. 101.) A sufficient reason is shown in this case for applying to this court instead of the circuit; and therefore no objection can be taken that the application does not fully come within the rule in that regard. And as the parties have seen fit to treat this as a motion for an alternative writ, the application will be so considered and decided by the court. Should, then, an alternative writ issue on the relation ?

It is objected on behalf of the board of commissioners that the writ should not issue, because, it is said, the awarding and letting of any contract to complete the rotunda of the state capitol is a matter clearly and. purely discretionary with the commissioners. It is said that there is no obligation resting upon the building commissioners to proceed and let the contract for the completion of the work on the rotunda, and that they may decline to let it to any one, if, in their judgment, the best interests of the people of the state will be promoted by their doing so. If this is a correct view of the power vested in the commissioners by the various acts of the legislature upon the subject, it of course furnishes a sufficient answer to the application. Eor it probably would not be contended, that a *mandamus*should issue to enforce the exercise of a discretionary or voluntary act, or power, when the matter is left wholly to the discretion of the commissioners. But whether the awarding of the contract was a matter resting wholly in the discretion of the commissioners, is a question we shall not attempt to decide; since, upon the facts stated in the application, we are of the opinion that the relators are not entitled to the writ.

It appears from this application, that the building commissioners, in pursuance of the acts of the legislature, advertised in the “ State Journal,” a newspaper printed in Madison, for sealed-proposals for completing the work on the *113rotunda according to certain plans and specifications. It was stated in tbis printed notice tbat a bond, in tbe penal sum of at least balf of tbe whole sum to be paid for doing tbe work, would be required of tbe party to whom tbe contract should be awarded, with sufficient sureties to be approved by tbe commissioners, conditioned for tbe prompt and faithful performance of tbe contract; *“and that all proposals must specify the names of such sureties proposed to be*given, *with the written consent of such persons to the use of their names for that purpose”*Now it appears tbat in tbe sealed proposals made and sent in by tbe relators, there was no written consent.of any one to tbe use of bis or-their names as a surety upon tbe bond. In other words, their bid failed to comply, in a most essential particular, with tbe printed requirements of tbe commissioners. "We therefore think it was properly disregarded by them, on account of this informality.

¥e have no doubt tbat it was entirely competent for tbe commissioners to prescribe any reasonable formality to be observed by bidders. They required tbat all proposals should specify tbe names of tbe sureties proposed to be given, with tbe written consent of such persons to tbe use of their names for tbat purpose. Tbis seems to us a very reasonable requirement; and if it could be disregarded by tbe bidder, why not dispense with all tbe requirements in tbe printed notice ? There is no more propriety in dispensing with one positive requirement than another. All bidders were informed what their bids should contain to render them formal. And they bad no right to presume tbat any bid would be received by tbe board except such as complied with tbe printed requirements. It is stated in tbe application tbat tbe relators were present at tbe opening of tbe proposals, for tbe purpose of furnishing whatever sureties were necessary and required in tbe premises, and tbat certain *114responsible persons were likewise present with them, for the-purpose of giving their written consent to the use of their names as sureties. But no matter. It was too late to perfect their bid. Suppose, after the proposals were opened, some other bidder had requested the privilege of withdrawing his bid for the purpose of reducing it; would it have been the duty of the commissioners to allow it to be done ? No one would contend that it would be proper for them to do so. And yet, as already remarked, if they could dispense with one positive requirement of their printed notice, why not disregard all? Why not permit all bidders to withdraw, alter, and modify their proposals as they might desire, after the bids were opened, or the time for receiving them had expired ?

The relators’ proposals, being informal and irregular, could not properly be considered by the commissioners.

*By the Court.*— The motion for an alternative writ of *mandamus*is denied.