Lambert v. Fenelon

BARNARD, P. J. This is an appeal from an order directing the issuánce of a peremptory writ of mandate.

[143]The respondent filed a requisition in due form for an “18 inch carriage L. C. Smith Standard Typewriter” for use in the auditor’s office. The appellant refused to comply with the .requisition as made, but offered to purchase for the auditor a typewriter of that size and of any make other than the one named in the requisition. He wrote to the auditor as follows:

“In the face of the resolution passed by the Board of Supervisors on March 30, 1937, ordering the Purchasing Agent to give an equitable distribution of supplies and equipment among the firms of Orange County when and where practical, I am compelled to disregard this requisition for an L. C. Smith Typewriter as any one of the other firms handling typewriters are in line for their share of patronage. ’ ’

The auditor filed a petition for a writ of mandate commanding the purchasing agent to purchase for the use of the auditor’s office a typewriter as described in the requisition alleging that he was unable to operate his office efficiently without the same, that the purchase thereof had been refused, and that such refusal was purely arbitrary, unreasonable, dictatorial, unlawful and in disregard and violation of the duty of the purchasing agent. The purchasing agent answered alleging, among other things, that he had offered to furnish the auditor with a typewriter of that size and of any other make, that at the time this request was filed the firm handling L. C. Smith typewriters in Orange County had received more than its share of the business and that at that time other firms in that county handling other standard makes of typewriters were in line for their share of the business pursuant to the above-mentioned resolution of the board of supervisors. A number of affirmative defenses were set up, consisting chiefly of the defense that under the state laws the purchase of such supplies was vested exclusively in the board of supervisors to be exercised through their agent and employee, the purchasing agent, that the matter was entirely within the discretion of the purchasing agent or of the board, and that mandamus would not lie to control their discretionary acts.

Evidence was introduced to the effect that a typewriter of this size was needed in the auditor’s office; that about twelve typewriters were in use in that office, all of which were [144]