The work of the editor is uniformly well done. His biographical notes, while they are not of interest to the old practitioner, are valuable to the student; and his analyses are of value alike to the student and the lawyer.

Reported Cases.

STATE EX REL. MITCHELL v. COMMISSIONERS. MANDAMUS - LETTING OF CONTRACTS-― DISCRETION. (Ohio Supreme Court. June 19, 1883.)

1. Where the county commissioners proceed, under the provisions of title VI, chapter 1, R. S.. to advertise for sealed proposals for the furnishing of labor and materials for the erection of a court house, and the bids are such that the contract must be let for the entire job, it is their duty to award such contract to the person or persons offering to perform the same at the lowest price, and give sufficient bond to the acceptance of the commissioners for the faithful performance thereof.

2. There is no such conflict between Secs. 794 and 799 R. S. as requires the rejection of either. Sec. 794 provides for letting contracts, in certain cases and under certain conditions, to separate bidders repre senting different trades, in respect to which, the provisions of that section and not Sec. 799 apply. In all other cases the provisions of the latter section govern.

3. Where a contract is to be let for the entire job, because the aggregate of the separate bids exceeds the estimated cost of the improvement, the case is one not provided for by Sec. 794; and in determining who is entitled to the contract, the provisions of Sec. 799 (which is identical with Sec. 10, of the act of April 27, 1869, 66 O. L. 52), as construed by Boren v. Commissioners, 21 Ohio St. 311, are applicable and governing. In mandamus.

The commissioners of Marion County, being authorized and having determined to erect a court house in that county, procured the necessary plans, drawings and specifications to be made and filed therefor; the estimated cost thereof to be one hundred thousand dollars. Thereupon the commisThereupon the commissioners advertised for bids or proposals for doing the work, requiring each proposal to be accompanied by a bond, in the sum of $1,000, conditioned that the bidder would enter into the contract, if awarded to him, and also give a bond with good and sufficient sureties in the sum of $25,000 that he would well and faithfully perform the contract.

By the terms of the notice, proposals were to be received up to one o'clock in the afternoon of March 29, 1883. The relator, by a proposal in due form, with the required bond accompanying the same, proposed to do the work for $91,600. G. Leffler & Co. proposed to do the work for $99,980, and William Saint for $92,322.24. Bids were also received from different parties for doing the separate parts of the work represented by the different trades, and also several other bids for doing the entire work. All of the separate bids when aggregated, and all the bids for the en

tire work, except those mentioned, exceeded the estimate of $100,000. On the day named in the notice the bids were opened and the without awarding the contract. On the next commissioners adjourned until the next day day, March 30, they awarded the contract to Leffler & Co. for $99,980, but did not announce their action until the Monday following. The relator, upon learning that the contract was thus awarded, while he was the lowest bidder, tendered to the commissioners a contract duly signed by him, and also a bond with sufficient sureties in the sum of $25,000 conditioned that he would well and faithfully perform the contract, and demanded the same. The commissioners refusing to grant it to him, he filed his petition in this court setting up the above recited facts and praying that defendants be compelled, by mandamus, to award him such contract.

The answer admits all of the facts thus recited, except the sufficiency of the sureties on the bond tendered by relator, respecting which it says defendants have no knowledge, and hence deny its sufficiency. The proof, however, shows that the bond is sufficient, both in form and as to the responsibility of the sureties.

The answer alleges that the relator was not the lowest and best bidder. That the commissioners carefully and honestly considered all the bids, together with the skill, responsibility, promptness, honesty and experience of each bidder. That the cost of the building, if an honest job was done, would be $100,000; that the relator was intoxicated when the bids were being considered, and they were informed and believed, he was in the habit of getting intoxicated; that they were informed and believed that he was without experience, unskilled and incompetent to construct said building or any part thereof; that he was not pecuniarily responsible and not prepared, financially, to carry on and complete the work; that he attempted to intimidate the said board, and to purchase the influence of the prosecuting attorney, who was advising with said board, and that acting upon the information aforesaid, and in good faith, they awarded said contract to Leffler & Co. believing them, while not the lowest bidders, to be the lowest and best bidders.

The allegations of the answer are denied by the reply filed by the relator. This court heard the testimony of the witnesses offered by both sides, and the argument of counsel. DOYLE, J.

We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and belief that ample discretion was vested in them to reject the bid of the relator

We

upon the information which they had. are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to put them in possession of the real facts, before deciding against awarding him the contract. must assume that if the commissioners, when the charges were made against Mitchell, had given him a hearing, he would have satisfied them, as he has us, that there was in fact no reason why this contract should not be awarded to him.

We

We might grant a peremptory writ in this case without saying more, were it not for the claim, urged with great earnestness, that the commissioners are vested with complete discretion in the matter of determining who is entitled to such a contract, and that such discretion, when exercised in good faith, will not be reviewed by the courts, even though the information upon which they acted was false, or that they were themselves misled by it, or that it was wholly insufficient to justify their action, if they believed otherwise.

In the Darke County cases, 21 Ohio St. 311, this court, construing the act of April 27, 1869, held that:

the

"Where the commissioners proceed, in accordance with said act, to advertise for sealed proposals, to be filed within the time named. for the furnishing of specified labor and materials towards the erection of a court house, it is their duty to award the contract for such labor and materials to the person or persons who shall SO offer the same at lowest price, and give good and sufficient bond, to the acceptance of the commissioners, for the faithful performance of the contract; provided such price is not in excess of the preliminary estimates required by the act." Boren & Gucks v. Commisioners Darke Co., 21 Ohio St. 311. Section of the act of 1866, which is identical with Sec. 799 R. S., requires the contract to be "awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price, and give good and sufficient bond to the acceptance of the commissioners for the faithful performance of their contract," &c. Construing this provision, Day, J., in the cases above referred to, says: "The statute under which the parties were acting leaves but little discretionary power to be exercised by the commissioners, but they are vested with this power as to the sufficiency of the bond required of the bidders by the act, to entitle him to have the contract awarded to and made with him. Undoubtedly this discretion must be exercised in a reasonable and proper manner." See also Beaver & Butt v.

The Trustees of the Blind Asylum, 19 Ohio St. 97.

These adjudications are conclusive of the question under consideration, unless they have been overruled by subsequent decisions, or the law changed since they were made by legislative enactment.

The contention is that after the act of 1869 and the decision of the Darke County cases, the legislature vested in the commissioners the complete discretion contended for by the defendants herein. That the act of May 5, 1877, (74 O. L. 186) required the commissioners to let the contract to the lowest and best bidder, and in terms repeals all laws and parts of laws then in force inconsistent with its provisions; that to determine who is the best bidder requires the exercise of a discretion by the commissioners limited only by its exercise in good faith in determining what is for the best interest of the public; that this law, being in conflict with Sec. 10 of the act of 1869, must have the effect of repealing it. Being the latest expression of the legislative will it must govern. The State v. Commissioners of Shelby Co., 36 Ohio St. 326, is relied upon to sustain this view.

Both of these laws were carried into the Revised Statutes, with some changes made in the act of 1877, but without changes in the act of 1869. The act of 1877, as amended, is now Sec. 794, and Sec. 10 of the act of 1869 is now Sec. 799, R. S. Is there any irreconcilable conflict between the two? It is the duty of the court to so construe them as to give each full force and effect, if it can be done without violence to established rules of construction or the manifest legislative intent.

By the act of March 3, 1831 (2 S. & C. 1228), the commissioners were authorized to receive sealed proposals, or to sell the work at public auction to the lowest bidder, and the person making the best proposal or the lowest bid, was entitled to the contract, "if in the opinion of the commissioners he is a proper person to undertake such work." This act, with a number of others, was repealed by the act of Apri

7, 1869, already mentioned, and the words giving the commissioners discretion to determine whether the bidder was a fit person to undertake the work, as also the words, "best proposal," were omitted.

The latter law, with the construction given it in the Darke County cases, was in force when the act of 1877 was passed. It must be remembered that up to the latter date there was no obligation imposed on the commissioners to advertise for separate bids, from the different trades represented in the proposed improvement. The act is entitled "an act to regulate the letting of contracts for the doing of public work and the better protection of

mechanics." It provided that whenever any board, &c., is authorized to contract for the erection of any building, &c., and required by law to advertise for proposals therefor, it shall be the duty of such board, &c., "to require separate and distinct proposals to be made for furnishing the materials or doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor employed or business necessary to be used in making such public improvement; and in no case where more than one such trade or kind of mechanical labor, employment or business shall be required to furnish the materials and do any such work, shall any bid for the whole of the job, or any greater portion thereof than is embraced in the trade or kind of mechanical labor, employment or business be received or considered by any such board, officer or authority, in making the award of the contract or contracts for the same. And in all cases the contracts for doing the work belonging to each separate trade or kind of mechanical labor employed or business, or the furnishing of the materials for the same, or both at the discretion of the said officer, board, or other authority, shall be awarded to the lowest and best, separate bidder therefor, &c." In the Revised Statutes, Sec. 794, this statute was so changed as to require that no bid for the whole job shall be considered "unless the separate bids do not cover all the work and material required, or the bids for the whole, or for two or more kinds of work or material, are lower than the separate bids in the aggregate," and requiring the contract to be let to the lowest and best separate bidder, "unless the same is let as a whole or to bidders for more than one kind of work as aforesaid."

The separate bidder meant by this statute is a bidder for a separate part of the work belonging to a distinct trade or division of mechanical labor.

It is apparent that, under this section, read in connection with the other sections regulating the letting of the contract, to require the commissioners to let the contract to the lowest and best separate bidders, the aggregate of such separate bids must not exceed the estimated cost of the improvement, must cover all the work and materials required, and must not exceed in amount any bid which includes the whole of the work. In other words the work shall not be let to different parties, representing different trades, if the aggregate of their bids exceeds the amount of any bid which includes all of the different kinds of work to be done.

In this section, 794, alone is found the words "the lowest and best separate bidder." Its purpose was to provide a means for bidding upon separate parts of the work, by con

tractors or tradesmen, without requiring them to undertake the entire job, as well as to prevent combinations to forestall competition. But the legislature, in the changes as made in the law enacted in Sec. 794, wisely provided that this privilege to the separate tradesmen should not be at the expense of the public. To entitle them to separate contracts their bids must not exceed that of any bidder who includes the whole, must not exceed the estimate, and taken together must embrace the whole work.

When the conditions exist which require. the commissioners to let the contracts separately, they shall let them to the lowest and best separate bidders. But when these conditions do not exist, as in the case at bar, and the commissioners are required to let the contract for the entire job, to whom shall it be let? The law of 1869, which has been carried into the Revised Statutes without material change, and as construed in the Darke County cases supra, requires the commissioners to let such contract to the person offering to do the work at the lowest price and give good and sufficient bond to the acceptance of the commissioners, &c.

We can not hold that this provision is repealed by Sec. 794. pealed by Sec. 794. Each of these sections is in full force, and each is limited in its operation to the cases included in it when both are read together. It is no part of our duty to explain why the legislature saw fit to vest in the board a greater discretion when awarding contracts to a number of persons, having no responsibility for each other, than when awarding the same by a single contract to a person or persons responsible for the entire work.

The

These sections thus construed are reconciled and not in conflict. With this construction there is no conflict between the decisions in the Darke and Shelby County cases. In the latter the bids were separate, for the iron work alone. The lowest bidder (to whom the contract was awarded) refused to execute it, and the commissioners re-advertised. relator, who was the only other bidder under the first notice, sought to compel the commissioners to award the contract to him. The court held that they were not bound to do so. What the result would have been, if the commissioners had awarded the contract to the relator in that case, in the first instance, and refused it to the lowest bidder, we need not determine.

We agree with the holding in that case, that in so far as Sections 794 and 799 are different the provisions of the former must govern, because they relate to special cases which form exceptions to the general provisions of the latter.

It is, in our judgment, quite evident that the legislature intended by the changes in the act of 1875, found in Sec. 794, to make it harmonize with the other sections of the chapter, enacted at the same time; and that there is no occasion to resort to the rule that the latest expression of the legislature's will must govern for the reason that the sections are de te harmonize by this single expression of the legislative will.

It may be added that whatever discretion is vested in the commissioners under Sec. 794 (which we do not determine), it certainly is not greater than that vested in them under Sec. 799 in respect to the acceptance of the bond. In the language of Judge Day "undoubtedly this discretion must be exercised in a reasonable and proper manner." have already said that, while the defendants supposed they had a right to reject this bid, under the circumstances, that discretion, even if we found that Sec. 794 governed their action, was not exercised in a reasonable and proper manner.

Peremptory writ allowed.
[To appear in 39 Ohio St.]

We

STATE EX REL. OGLEVEE v. CAPPELLER, AUDITOR. TREASURER AND AUDITOR-EXPENSES AND FEESWHO MUST PAY.

(Ohio Supreme Court. June 26, 1883.;

1. The state is not liable for any part of the fees or expenses of the county treasurer or county auditor, or their assistants, except where such liability is created by statute. The state is not bound by the terms of a general statute unless it be so expressly enacted.

2. No such liability was imposed upon the state by the provisions of the acts of March 20, 1866, S. & S. 780; May 6, 1869, 63 O. L. 122; or section 38 of the act of April 5, 1859, S. & C. 1454 (R. S., 2858, 1071, 1097.)

3. Section 1 of the act of April 14, 1880, (77 O. L. 205) is not in conflict with either section 26 or 28, article of the constitution.

Mandamus.

The relator, John F. Oglevee, state auditor, in his petition, represents that prior to October 28, 1881, he, as auditor of the state, acting under the laws thereof, examined the certificates and abstracts of the semi-annual settlement between the auditor and treasurer of Hamilton County, made on the twenty-third day of September, 1881, which certificates and abstracts were returned to said auditor of state October 3, 1881.

That upon such examination the auditor of state ascertained the exact sum of money payable by the county treasurer to the state treasurer, to be $291,658.63, and that the amount of Hamilton County's proportion of the state common school funds, and school ministerial and other trust funds, due and payable to the county, to be $73,183.60.

That the auditor of Hamilton County in said settlement sheets, by erroneously deduct

ing from the amount due the sinking fund of the state the sum of $2,958.45, and from the general revenue fund the sum of $4,671.27, and from the state common school fund the sum of $3,904.88, erroneously reported, in his settlement sheets, the amount payable by the county treasurer to the state treasurer to be $280,124.03. Upon the receipt of such settlement sheets, the relator requested the county auditor to correct said errors, which he refused to do, and continues to refuse so to do, by means of which there has been wrongfully withheld from the state treasury the sum of $11,534.60 by the county treasurer and credited to the county fund of said Hamilton County; that by section 1043 R. S., as amended April 19, 1881, 78 O. L. 226, the county auditor of Hamilton County, after each semiannual settlement with the treasurer of the county, is in duty bound to correct any error which may have occurred at any previous settlement, and has been in duty bound at each settlement since that of September, 1881, to correct the errors aforesaid; that on the fifth of February, 1883, the relator prepared and transmitted to the county auditor instructions in regard to this error, directing him, at the forthcoming February settlement, 1883, to correct the same; that on the twentyseventh of March, 1883, the county auditor sent to the auditor of state what purports to be duplicates of the several certificates and abstracts required to be made in the February settlement with the county treasurer, bearing date March 23, 1883, which show that said county auditor has failed and refused to correct said errors, and to obey the instructions issued by the relator February fifth.

Wherefore the relator prays for a writ of mandamus to compel the defendant, after first correcting the errors aforesaid, to apportion the taxes in the hands of the county treasurer, and to re-certify the balance due the state, etc.

The answer, admitting that the certificates and abstract of the settlement of 1871 show the deduction of $11,534.60 in the aggregate, as charged in the petition, denies that such deductions were illegal or unauthorized. It alleges that said sum was for money due and owing to the county by the state, by reason of errors in the apportionment of taxes at previous settlements, and which, upon a presentation of the facts, and the demand of the county that the same should be corrected at the settlement of August, 1881, the defendant examined and corrected. That he found that the state's proportion of said errors was the said sum of $11,534.60, and that to correct said error in his said settlement with the treasurer of August, 1881, he deducted from the funds of the state, and transferred to the funds of

the county the sum aforesaid. That the errors were of the following general character, to wit: From 1869 to 1876, there were paid out of the funds of the county, at various settlements, large sums as counsel fees, in suits against the auditor and treasurer for performing their duty in respect to the collection of taxes charged on the duplicate, and in respect to the collection of the public revenue, of which the state should bear its proportion.

From April, 1870, to September, 1880, large amounts were paid by the county to local collectors for collecting delinquent personal taxes, said collectors being employed by the various treasurers under authority from the county commissioners.

From 1861 to 1879 there were paid out of the county fund, sums of money to the county auditors, and other persons employed by them, as additional compensation for hunting up and causing to be assessed and placed on the tax duplicate, omitted property, being a percentage of the taxes thus collected. That the state was interested in and entitled to a share of the taxes collected by said local collectors and upon said omitted property, but has never paid its pro rata share of such counsel fees, local collectors' compensation or omission fees, and that its just share thereof is the said sum of $11,534.60.

That he was, therefore, justified in making the settlement of 1881, and, in the various semi-annual settlements since, of refusing to make the corrections therein demanded by the relator.

DOYLE, J.

The matter in controversy is the same as that was before us in The State v. Staley, 38 Ohio St. 259. The fact that this money was still in the connty treasury, unappropriated, was found in that case, and there is nothing in the present case to show that that is not still true.

It appears from the admitted facts in the present case, that in the settlement of August, 1881, (in fact made September 27, 1881), the auditor of Hamilton County found that prior to that time certain expenses had been incurred by Hamilton County in the collection of taxes, and in suits involving the validity of taxes, which had been wholly paid by the county, and, assuming that the state should pay its proportion of such expenses, deducted from the amount which would otherwise be due the state, and which the certificates and abstract of settlement would show to be the amount which should be paid by the county treasurer to the state treasurer, the sum of $11,534.60.

This amount was arrived at in this way: First. In 1861 the county paid to its auditor, for extra compensation in placing upon

the county duplicate property which had been omitted therefrom, the sum of $620.00, and in 1873, extra compensation was paid to the county auditor for like services in the sum of $6,745.84, making in all $7,365.85. Of this amount it is claimed that the proportionate share of the state was $1,156.37.

Second. In 1878 and 1879, the county commissioners employed persons to hunt up property omitted from the tax duplicate, which ought to be taxed, and to furnish the evidence to the auditor upon which he should charge such property upon the tax duplicate. These persons were paid for their services the sum of $3,904.93, and the. state's proportionate share thereof, it is claimed, was $613.03.

Third. Between April, 1869, and July, 1879, the county paid, as attorney's fees and other expenses, in actions against the treasurer and auditor for performing or attempting to perform their duties in the collection of the public revenue, the sum of $11,034.10, and also in the prosecution by the treasurer of the proceeding to enforce the collection of taxes, authorized by section 38 of the act of April 5, 1859, S. & C. p. 1454, the sum of $1,996.49, amounting in all to $13,030.59, of which the state, it is claimed, should pay its proportion. to wit, $2,045.78.

Fourth. Between April, 1870, and September, 1880, there was paid by the county, to local collectors, for the collection of delinquent personal taxes, the sum of $49,111.73, and the claim is, that of this the state should pay its share, to wit, $7,710.52.

The sum of these four amounts thus charged to the state in the settlement of 1881, is the amoun' in controversy now.

The matter specially involved herein, is the true construction and effect of the several statutes under which the above expenditures are claimed to have been made. It is conceded that if the state can be charged with any part of them, it must be by virtue of some statute, either expressly or by necessary implication, authorizing such charge. It is quite clear to us that the claim of the county under the first and fourth enumerations above, and the last item in the third enumeration must be disallowed. The $620 paid to the auditor in 1861, the defendant concedes was without authority of law, so far as the state is concerned, and withdraws that item. The $6,745.84 was expended under the authority of the act of May 6, 1869, 66 O. L. 122, entitled "an act supplementary to the act prescribing the fees of county auditors, passed May 1, 1862, as amended April, 1865, as amended April 17, 1867." It provided for additional compensation to be paid out of the county treasury, for placing upon the duplicate all tax omissions,