dissenting:
I respectfully dissent from the majority opinion in this mandamus proceeding. My reasons are quite simple. It merely allows a subordinate to prevail over his superior in connection with the purchase of tires for the State of West Virginia. If this is allowed to prevail in all cases it opens the door to many difficulties.
The law is clear with regard to the status of the director of purchases and the commissioner of the department of finance and administration at the time the matters arose in connection with this proceeding. The head of the department of finance and administration is the commissioner. One of the divisions under the department of finance and administration is the director of purchases. Code, 5A-1-1, as amended. This statement is clearly set out by virtue of the provisions of Code, 5A-1-2, as amended, and can not be disputed. This statute relative thereto reads in part as *89follows: “The department of finance and administration and the office of commissioner of finance and administration are hereby created in the State government. The commissioner shall he the chief executive officer of the department and director of the budget and shall be appointed by the governor, by and with the advice and consent of the senate, for a term not exceeding the term of the governor. * * * There shall he in the department of finance and administration a budget division, a purchasing division and a general services division. Each division shall he headed hy a director, who shall he appointed by the commissioner to serve at his will and pleasure.” (Emphasis supplied.)
The director of purchases at the time the bids on the tires involved in the case at bar were let determined that the bids submitted by the petitioners Should be awarded, signed the contract and demanded that his superior approve it. Apparently, there was some question in the mind of the chief executive officer of the department of finance and administration with regard to the bids in question and he sought the advice of his statutory attorney, the Attorney General for the State of West Virginia, who did not approve the awarding of the contract and advised against the execution of the contract. The proceeding in mandamus in this case shows that the then director of purchases desired that the petitioners’ bid be accepted and apparently attempted to execute the contract even after a public hearing, which clearly shows that the commissioner, the chief executive officer of the department, did not approve the action of his subordinate, the director of purchases, and the law relative thereto clearly provides that any of the powers and duties given to the director are all “* * * under the direction and supervision of the commissioner * * Code, 5A-3-3, as amended. (Emphasis supplied.)
The law governing such matters involved in this proceeding is that all bids shall be based on standard specifications promulgated and adopted by the director under the direction and supervision of the commissioner. Code, 5A-3-14, as amended, and Code, 5A-3-3, as amended. All open market orders, purchases based on advertised bid requests, or contracts made by the director under the di*90rection and supervision of the commissioner shall be awarded to the lowest responsible bidder, taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the state government, and the delivery terms, all of which is under the direction and supervision of the commissioner. Code, 5A-3-14, as amended, and Code, 5A-3-3, as amended.
It is further provided by law, without any qualification, that: “Any or all bids may be rejected.” Code, 5A-3-14, as amended. This clearly means to me that the commissioner of the department of finance and administration may reject any and all bids if the law made and provided for the operation of the department of finance and administration means what it says, i.e., that such matters are under the direction and supervision of the commissioner, as provided in Code, 5A-3-3, as amended.
The director of purchases is an employee of the commissioner, appointed by him to serve at his will and pleasure. He is merely the head of one of the divisions of the department of finance and administration; and subject to the direction and supervision of the head of the department, all of his actions are controlled by the said head of the department and the law never intended that there should be a confrontation and controversy with regard to any bids for the purchase of goods or property for the State of West Virginia between the director of purchases and his supervisor, the commissioner of the department of finance and administration.
Although the purported contract was signed by the director of purchases there was no authorization in the law pertaining to such contract for any execution by the director. The law clearly provides that all such contracts shall be signed by the commissioner in the name of the State and be approved as to form by the Attorney General. Code, 5A-3-15, as amended.
If the commissioner of finance and administration directed the director of purchases to reject all bids, which he did in the instant case, all bids should have been rejected and *91new bids obtained. This was not done. What has been done is to compel the commissioner to do what the director wanted him to do. Therefore, I am of the opinion the writ should not have been granted in this case.