The Black Hills union. [volume] (Rapid City, Pennington County, Dakota [S.D.]) 1889-1904, 1896-09-04

Il HuUll6u0uS w OL0 6dlO OOSCNH d. IOS.
sage, and to Immediately let and award
the contract for the furnishing Of the
blanks, blank books, stationery, and
supplies generally, for all the county
Offices for one year, to the said Joseph
B. Gossage, and to execute such con-
tracts in accordance with the bids of the
said Gossage. This peremptory writ
was duly served. and upon a showing
that the petitioner had wlllfully refused
to obey it, he was found guilty of con-
tempt, fined 500, and committed to
tho common jail Of Pennington county
until he should comply with the man
date OF the court, and execute the con-
tracts therein mentioned. Having been
imprisoned under this order of commit
ment, the petitioner asks to be dis
charged from custody, alleging that his
confinement is illegal. Numerous OBJ
]ections are made by him to various
steps in the proceedings which resulted
in the order Of commitment. It is al
legged that no judgment was ever rem
dered in the mandamus proceeding; that
proper notice was not given the defend
ants therein; that the board was re-
quired by the peremptorv writ to per-
form acts not required by law, and
| which are beyond the limits of their
official duties, especially in regard to
the publication OF delinquent tax list.
In the view we shall take OF the case. it
will be unnecessary to consider any OF
these objections, our attention being
confined to the substantial controversy,
whether the court had jurisdiction to
issue the writ; and, in considering this
question. we will, for the purposes of
the discussion, assume the position
which is most favorable to the court
below, and the contention OF the par
ties interested c1vllly in having the con
tracts executed according to the require
ments OF it's mandate.
The right of G~ossage to have his bids
accepted must be sustained, If at all,
upon the theory that he was the lowest
responsible bidder, and that it was the
official business Of the board to award
him the contracts. Assuming that, ii
he was the lowest responsible bidder, it
was the duty of the board to award
him the contracts, did the court have
authority to require the board to do so
by mandamus9 We believe the better
doctrine is that the duties Of officers in
trusted with the letting OF contracts to
the lowest responsible bidder are not
duties OF q merely ministerial nature,
but involve the e~xerciae of such a degree
of official discretion as to place them
beyond the control OF the courts bv
1t was not the duty Of the board to &C.
cept the Gossage bid. Itsduty consisted
in carefully and honestly considering
the terms OF each bid, the needs OF the
county, the responsibility of each bid
der; and upon the facts, as It's members
believed them to exist, the board was
bound to act. The duty of determining
what bids were the lowest, all
things considered, and who was or was
not a responsible bidder, belonged to
the board. 1t was a duty confded to
it's honest judgment and sound discre-
ton. This discretion did not rest with
the circuit court. It should have been
slow to interfere with it's exercise by the
officers especially intrusted Herewith.
We verv confidently reach the conclu-
sion that the decision OF the board,
within the limits OF the discretion con-
by the courts. The court might have
required the board to proceed and con-
slider the bids, but it did not have au
thority to command the board to
award the contracts to any particular
bidder. 1t could not direct and control
the board in the exercise of the disere-
ton conferred upon it by the Law. In
attempting to do SO it certainly erred;
and this court would, upon an appeal
ln'the mandamus case, not hesitate to
reverse its actions. But a judgment
may be erroneous because it Is void.
Elk parte LANCE, Is Wall. 1853, It is
we'll settled that a merely
judgement cannot DO reviewed upon
habeas corpus, and that a void judg-
ment will not sustain a commitment.
Nothing in the law is more difficult than
an attempt to distinguish between what
is only, and what is void.
The case at bar illustrates this diff
Guilty. We consider that there is no
doubt that the circuit court erred in
attempting to control and direct the
discretion OF the board, but it is not SO
clear that in so doing it exceeded it's
jurisdiction, and issued q process which
was absolutely void. 1t has been I'M
possible within the time allowed for the
preparation of this opinion, to refer to
the numerous authorities consulted, or
to discuss the subject as exhaustive}y as
It's Importance merits. 1t is conceded
that the question involves serious diff
cultles, and Is one upon which courts
may easily differ; but upon such exam
W We have Oeeu ADle TO give IL
and having in mind that the liberty of q
citizen Is involved, we are inclined to
hold that the court was without power
to issue the writ, that it's mandate was
without force or effect, and that the
petitioner cannot be punished, although
ne may have failed or refused to comply
with its requirements. This position is
SUSTAINED by the supreme court of the
United States in the case Elk parte