Brace, C. E.

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North Dakota Law Review Volume 23 Number 4 Article 9 1947 Bids for Bonds: Written and Oral C. E. Brace Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Brace, C. E. (1947) "Bids for Bonds: Written and Oral," North Dakota Law Review: Vol. 23 : No. 4 , Article 9. Available at: https://commons.und.edu/ndlr/vol23/iss4/9 This Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. BAR BRIEFSnor does it state that he must be engaged in teaching immediately prior tohis induction, but it does state that any person who prior to the entry intosuch active service was a teacher by whom contributions were made intothe fund, shall be entitled, upon his resumption of the teaching professionin the state to have his time of his service in such armed forces creditedas teaching services.I believe that this law should be liberally construed in favor of thosewho resume teaching after being discharged from military service. I havein mind a person who has been educated and trained for the profession ofteaching and has been engaged in that profession for some time. He tem-porarily takes other employment for a month, a year, or several years, he isthen inducted into the armed forces of the United States, he is honorablydischarged and then resumes the work of a teacher. Another person whoalso has been educated and trained as a teacher is inducted into service.Upon his discharge he also resumes his work as a teacher.The law was intended to benefit those who are engaged in the teachingprofession. The fact that they may temporarily have been engaged in otherwork and while thus temporarily engaged are inducted into the armedforces of the United States should not deprive them of the benefits ofthis law.Nor does it appear that the fund will suffer by permitting such aperson or persons to receive credit for the time of service in the armedforces. He makes his contribution in accordance with the rates estab-lished, based upon the salary which he was receiving during his induction.In my opinion, therefore, it would only be fair and equitable to give ateacher credit for the time he served his country upon contribution of theamount required regardless of whether or not he was engaged in other workat the time of induction into service.Very truly yours,NELS G. JOHNSONAttorney General.ByP. 0. SathrePOS:L Assistant Attorney General.BIDS FOR BONDS: WRITTEN AND ORALSeptember 3, 1947Mr. Clyde Duff yCity AttorneyDevils Lake, North DakotaDear Mr. Duffy:Re: Section 21-0327 R. C. 1943Your letter of August 28th, 1947, addressed to the attorney general,requesting an interpretation of Section 21-0327 N. D. R. C. 1943, hascome to my desk for attention.Your request requires an interpretation of the above section, and,as the matter is of particular interest to the Bank of North Dakota, thebank officials have orally joined in your request. As the matter is ofconsiderable importance, we have had an office conference on the subjectand have given some considerable time to a study of the matter, and areall agreed upon the interpretation which follows.This section provides, with reference to the opening of bids formunicipal bonds:"At the time and place specified, the governing board of the taxingdistrict shall be represented by one of its officials, or by the countyauditor or by some other person acting at the request of the board, whoBAR BRIEFSshall receive competitive bids, whether submitted orally or in writing.When the bids are received at his office, the county auditor shall enterin a permanent record the amount and rate of interest of each bid andthe name and address of the bidder. If the bids are not received at theoffice of the county auditor, the auditor, clerk or secretary of the muni-cipality shall make a similar record."It will be noted that no part of the applicable statute requires sealedbids. Section 21-0326 provides:"Such notice may be in any form but shall specify the amount of bondsoffered for sale, and the date of the maturity thereof." And Section 21-0327provides that: "The notice shall specify the time and place at which bidswill be received." The statute, section 21-0327, gives due notice to allbidders that competitive bids, whether submitted orally or in writing willbe received. McQuillin says:"The person or company making a bid, or entering into a contractwith a municipality, acts at his peril. He is supposed to know the law-a very violent presumption it may be, but none the less effective. He ispersona non grata with the courts, which must look to "the protection ofthe public."3 McQuillin, Mun. Corp. 856, Sec. 285.Our statutes, above cited, clearly require that municipal bonds besold only on competitive bids. "Such requirements are for the purpose ofinviting competition, to guard against favoritism, improvidence, extrava-gance, fraud and corruption in the awarding of municipal contracts, andto secure the best work or supplies at the lowest price practicable."3 McQuillin, Mun. Corp., 858, Sec. 1286.And further, the same author says:"In order to attain competitive bidding in its true sense, proposalsfor bids must be invited under circumstances which afford a fair andreasonable opportunity for competition. Consequently, it is essential thatthe bidders, so far as possible, be put on terms of perfect equality, sothat they may bid on substantially the same proposition, and on equalterms."3 McQuillin, Mun. Corp. 886, Section 1309.The statute here in question clearly informs all bidders that at acertain time and place bids, either oral or written, will be received forthe bonds to be sold. These bids are to be competitive in order that thebonds may be sold on the best possible terms for the municipality. Clearlyall bidders may appear in person and make their bids orally, and anybidder desiring to do so may submit a written bid. If a bidder appears inperson and wishes to make a competitive bid, it is difficult to understandhow he can compete with written bids without knowing what these bidsare. If there are no written bids filed, then all bids must be oral. Surelythese oral bids are made in competition between the oral bidders present,each bid being openly made so that all competing bidders may know withwhat bid they are competing. There is certainly nothing in the statute toindicate that the oral bids are to be made and received in secret. Thereis no need to define the words "competition" or "competitive." They importrivalry between the bidders, and there can be no rivalry unless each knowswhat the bid of his rival is. If all bids are oral bids, there is true competi-tive bidding. Can this rivalry be cut off by the filing of one or more bidsin writing? These statutes do not provide for bids to be submitted onlyin writing and the awarding of the contract of sale to the best bidder.If such were the case, no oral bids could be received, and there would beno true competitive bidding, for each bidder would bid blindly, not knowingwhat any other bidder had offered.BAR BRIEFSSearch has failed to find any adjudicated case interpreting a similarstatute. Our interpretation must be reasoned from applicable principlesof law. These we have indicated hereinbefore.It is our opinion:1. That both written and oral bids may be received for these bonds.2.' That oral bidders are entitled to know what the written bids arebefore they make their oral bids.3. That oral bidders may make successive oral bids in open compe-tition with each other.4. That any bidder who has filed a written bid may enter into com-petition with the oral bidders and bid on an equal footing withthem.5. That the recording officer in charge of the receipt of bids mustmake a permanent written record of each bid received, as pro-vided by section 21-0327, and each bidder must complete his finalbid by making the deposit required of those filing written bids.Very truly yoursNELS G. JOHNSONAttorney GeneralBy C. E. BraceAssistant Attorney GeneralFILING FEES-DISCHARGE OF REAL ESTATE MORTGAGESSeptember 8, 1947Mr. C. J. SchmidtClerk of District CourtMorton CountyMandan, North DakotaDear Mr. Schmidt:This will acknowledge your letter of September 3, 1947, in whichyou request an opinion from this office relative to the filing fees to becharged, in connection with the discharge of real estate mortgages underthe terms of section 35-0313 of the 1943 Revised Code, and for petitionfor change of name of an individual.We have already held that subsection 10 of section 11-1704 of the1943 Revised Code applies as to the fees to be charged by the clerk ofthe district court for filing of any proceeding involving the procedurefor discharge of a real estate mortgage under the terms of section 35-0313of the 1943 Revised Code. In an opinion to Mr. Register, dated August 6,1945, we said in that connection:"Another method of procedure which would serve the samepurpose would be to file the original order and application in theoffice of the clerk of the district court, and to have a certifiedcopy of the order filed in the office of the register of deeds, but,as we have pointed out, this is not an action and the filing feewould be governed by subdivision 10 of section 11-1704 whichenumerates the fees to be charged by the clerk of the districtcourt. Subdivision 10 provides, 'for recording and indexing anypaper not filed in an action or proceeding, for the first four folios,fifty cents, and for each additional folio, ten cents'."In another opinion, under date of June 25, 1947, we said this:"Since there is no specific provision in section 11-1704 forrecording of papers in connection with the proceedings for dis-charge of mortgages under section 35-0313, it is my opinion thatsubsection 10 of section 11-1704 would apply."

Bids for Bonds: Written and Oral

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Bids for Bonds: Written and Oral

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