
    (First Circuit — Hamilton Co. O., Circuit Court
    Jan. Term, 1901.)
    Before Smith, Swing and Cox, JJ,
    ISAAC H. GILBERT v. THE BOARD OF EDUCATION ET AL.
    
      Subdivisions 6 ana 7, seo. 3988, JR. S. construed—
    
    .Subdivision 7 of sec. 3988, R. S., relating to contracts for schoolhouses, which provides that “any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not; and if it is higher, such residue shall be rejected,”is apparently in coniflot with subdivision 6 of said section, which provides that “none but the lowest responsible bid shall be accepted; but the beard may, in its discretion, reject all the bids, or accept any bid for both labor and material, which is the lowest in the aggregate for such improvement or repairs;’’ but if possible said subdivisions should be reconciled. Therefore, where the discretion vested in the board by subdivision 3 is not exercised, then in the consideration of bids containing two separate items or more, any part of a bid which is lower than the same part of any other bid should be accepted.
    Injunction,
   Gieeen, J,

j|The letting of this contract, which is for the erection of a “school house, is governed by section 3988, Revised Statutes, except as the provisions of section 794, not inconsistent therewith may apply. Subdivision 6 of section 3988 .is as follows: .......... ....... ...... i

Chas. L. Hopping and W, A. Hides, for Plaintiff.

“None but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material, which is the lowest in the aggregate for such improvement or repairs.”

Under this provision, although some items in a bid for the entire improvement may be higher than the same items in another bid, still if the bid is the lowest in the aggregate the board may, in its discretion, accept it.

Subdivision 7 of section 3988 is as follows:

“Any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not; and if it is higher, such residue shall be rejected.”

This provision is apparently in conflict with that of subdivision 6; but if possible they should be so construed as to reconcile this apparent inconsistency; and we think the only reasonable construction is that in the event the discretion vested in the board by subdivision 6 is not exercised, then in the consideration of bids containing two separate items or more, any part of a bid which is lower than the same part of any other bid shall be accepted.

If the construction contended for by counsel for plaintiff were correct, then the provision of subdivision 6 would be meaningless, because if every part of a bid which is the lowest must be accepted, the aggregate will necessarily be the lowest, and the board could exercise no discretion.

Injunction denied.  