
    The State, on relation of Nevins & Myers v. The Commissioners of Printing.
    A mandamus -will not be granted at the suit of the lowest responsible bidder for public printing, to compel the commissioners of printing to award him the contract, where a contract has already, by mistake, been made with a higher bidder; where the amount of difference between the two bids is not shown; where the application has been unreasonably delayed; and where no good reason appears why a remedy was not sought, by injunction or otherwise, in an action jointly against the contractor and the commissioners.
    Application for a mandamus.
    The relators represent that they were the “lowest responsible bidders ” for a specified portion of the public printing, at the letting thereof by defendants on the 28th of July, 1868, accompanying their bid with sufficient sureties, agreeable to law, and to the satisfaction of the commissioners, but that, by mere mistake in the mode of computation, the commissioners erroneously held and adjudged one Webb to be the lowest bidder; and afterward, on the 6th day of August, 1868, awarded the contract to him. This mistake was not discovered till the 20th of August, 1868, when the relators requested the commissioners to enter into a contract with them, agreeable to the terms of their bid; which the commissioners declined to do, on the ground that they had already entered into a contract with Webb. On the 25th of August, the commissioners notified Webb to give up and cancel his contract, or to show cause why he should not, but Webb showed no good cause, and refused to give up his contract. On the 23d of December, 1868, the relators filed their present peti387] tion, asking for a mandamus to compel the defendants to *enter into a contract with them, agreeable to their bid. And the question is, whether upon these facts they are entitled to that remedy.
    
      R. A. Harrison and H. B. Wilson, for relators:
    1. The relators have a clear legal right to have the contract awarded to them, according to their proposals; and a mandamus is the proper remedy (at least in Ohio, under the provisions of the code regulating proceedings in mandamus) to enforce it. If the contract to which the relators are entitled can not be secured to them by mandamus, they are either without remedy or without adequate remedy. Const. of Ohio, sec. 2, art. 15; S. & C. 1201, et seq.; 63 Ohio L. 190; Code, sec. 569; People v. Meade, 24 N. Y. 119 ; Brady v. Mayor, etc., of New York, 20 N. Y. 313; McSpedon v. Mayor, etc., of New York, 7 Bosw. 601; Houston v. Clay, 18 Ind. 396; State v. Hastings, 10 Wis. 518; Same v. Same, 12 Ib. 596; Baltimore v. Reynolds, 20 Md, 1; Mitchell v. City of Milwaukee, 18 Wis. 92; Ruffner v. Commissioners of Hamilton County, Dis. 39; Hodges v. City of Buffalo, 2 Denio, 110; Boom v. City of Utica, 2 Barb. 104; Johnson v. United States, 5 Mass. 425; United States v. City Bank, 6 McLean, 130; Hunter v. United States, 5 Peters, 173; Benjamin on Sales, 355, 356; Comm’r of General Land Office, v. Smith, 5 Texas, 471; Story on Agency, sec. 302, and authorities cited in note 2 ; Selden’s Dissenting Opinion, 27 N. Y. 375 ; Ellis v. County Commissioners of Bristol, 2 Gray, 370; The People, ex rel. Roberts, v. Rives, 27 Ill. 242; Strong, petitioner, 20 Pick. 495 ; The State, ex rel. Anderson, v. Harris et al., 17 Ohio St. 608.
    2. The rights and interests of the public, as well as of the relators, demand that the application be granted. See remarks of Selden, J., in 27 N. Y. 375.
    
      Henry C. Noble, and Burnett & McGuffey, for Webb and others:
    A mandamus should not be issued :
    1. Because the relators have not such an interest — even admitting they were the “lowest responsible bidders ” — as entitles them to-a mandamus. The applicant for this writ must have a clear legal right. Have these relators, whose bid was *not accepted, a [388' legal right to the contract, which was awarded to another, who is now, and has been engaged in its execution for the past two or three-months? We think not; and in our examinations have not found any authority to sustain such claim; but on the contrary, in every case we find, where an application has been made by the lowest bidder for a mandamus, it has been refused. Moses on Mandamus, 124; The People v. The Canal Board, 13 Barb. 432 ; The People v. The Croton Aqueduct Board, 26 Barb. 240; The People v. The Contracting Board, 27 N. Y. 378.
    2. Because a contract is already awarded, and in process of execution, and no fraud or misconduct is alleged against the officers, or the contractor, who is not a party to this proceeding. Until this, contract has been set aside by a proceeding to which he is a party, the court will not make such an order as will affect, directly, his-rights. The State, ex rel. Ingerson, v. Berry, 14 Ohio St. 315 ; The Land Office v. Smith, 5 Texas, 471; The State, ex rel. Sharp, v. Trustees, etc., 2 Ohio, 108.
    3. Because the amount involved is trifling.
    4. The law requires the computation made on a mixed bid to be- “ a strict computation based on the work of the same class of printing of the preceding year.” What does preceding year mean?'
    
      'The commissioners assumed, and are willing, no doubt, to .admit that they understand “ preceding year ” to mean the preceding fiscal year. While Webb says the preceding year means the year preceding the letting. And this matter is unsettled. If one way, there is a mistake of a few dollars in the computation. If the other, then Webb is prepared to show that his bid is the lowest.
    5. The question before the commissioners was one for the exercise of discretion. They are required by law (sec. 4 of Laws of 1866, p. 190), to “ award the contract for each class of printing to the lowest responsible bidder therefor.” Can a mandamus be awarded in such a case? See 27 N. Y. 382.
    6. The most equitable consideration for this court, in this application, it seems to us is this: The contract requires expense to undertake it. The law required the contractor to be ready to perform 389] this contract by th& first Monday of *November next after the .award of the contract (2 S. & C., 1201, 1202, sec. 3); that is, about November 3,1868. The officers of state were informed of this mis-take in August, 1868, and the relators were then fully possessed of all the facts. Can they lie by from that time until this, allow the other contractor to incur liabilities and expenses, and now come in .and ask the court to award them this contract, overturn the business, and put them into possession of the printing ? Where a party sleeps upon his his rights until other interests intervene, the court will not, in the exercise of its discretion, grant the writ of mandamus. Kellog v. Ely, 15 Ohio St. 64; Chapman & Harkness v. Mad River and Lake Erie R. R. Co., 6 Ohio St. 137, 138; Johnson v. Lucas, 11 Humph. 306; Matter of the Life and Fire Ins. Co. v. Wilson’s Heirs, 8 Pet. 291; Ingerson v. Berry, 14 Ohio St. 322; 27 N. Y. 378.
   Welch, J.

By the second section of article 15 of our state eon.stitution, and the statutes enacted under it (2 S. & C. 1201; 59 Ohio L. 86; 63 Ib. 190), the public printing is required to be let upon •contract, by the commissioners of printing, to the “lowest responsible bidder.”

Whether such lowest responsible bidder, when refused the contract, has any legal rights which as such lowest bidder he can enforce ; whether the commissioners, by granting the contract in good faith to another person, have thus exhausted their powers, and can not, therefore, until that contract is set aside, make another with the proper person; and whether the commissioners have, in any supposable case, discretionary power to refuse a contract with the lowest responsible bidder, are questions argued in the present case, but which we do not deem it necessary now to decide. The court surely has some discretionary power in granting or refusing a mandamus ; and we are quite satisfied, irrespective of the proper decision of the questions named, that in the exercise of such a power, we ought to refuse that form of remedy in the present case.

The relators do not inform us how much lower their bid was than that of Webb, or whether the difference was merely nominal. For aught that appears, the object of the law, *which was to save [390 expense to the state, and, not to enrich the bidder, will be better effected by peforming than by attempting to rescind the contract with Webb. We are left to the inference, also, that the mistake was as much the fault of the relators as of the commissioners; that Webb made his contract in good faith, and that he in good faith, both before and after he received notice of the mistake, made outlays and incurred expenses in preparation for its fulfillment. Webb is not, and can not properly be, a party to this proceeding, and no adjudication here would or ought to bind him or affect his rights; and we can not know, but that in a subsequent case to which Webb may be a party, he will be able to show that he was in fact the lowest bidder. Besides, the relators show no reason for their long delay in making this application, nor what prevented them, if they had any legal rights in the premises, from asserting them, and asserting them immediately, in the form of an. action against Webb, .as well as the commissioners, to enjoin the making or performance of Webb’s contract, and to enforce the execution and fulfillment of one with them.

While, therefore, we are far from saying that a case might not arise where a mandamus should be granted at the suit of the lowest bidder, to compel the commissioners to execute and perform a a contract of the kind, we are satisfied that the present is not such a | case.

Mandamus refused.

Day, C. J., and Brinkerhoff, Scott, and White, JJ., concurred.  