
    The State of Ohio ex rel. J. R. Mills & Co. v. The Commissioners of Hamilton County.
    Jh accordance with the act of March 9,1866, which requires certain contracts on behalf of a county to be made with the lowest bidder, the commissioners of Hamilton county advertised for proposals to furnish the county offices with blanks, blank books, and stationery for the year 1871, and gave to the several bidders specifications which required the prices of the articles to be furnished to be fixed by the ream, quire, gross, dozen, etc., but did not state the quantity of any article that would be required under the proposed contract. The total amount of the prices thus fixed for one of each of the items in the specifications, in the proposals of the relators, was lower than that of any other bidder; but, by reason of the difference of the prices fixed for the same items in the pro-posáis of the several bidders, and the different quantities of the several articles that, upon a fair estimate, would be required during thevyear, it appeared that the aggregate cost of all that would be required under tho proposed contract, at the prices fixed by the relators, would amount to more than it would at the prices fixed in the proposal of another bidder. Meld, that the relators were not, within the meaning of the statute, the lowest bidders, and therefore are not entitled to a mandamus to compel 'the commissioners to award the proposed contract to them.
    Mandamus.
    The case is sufficiently stated in the opinion of the court.
    
      Mills & Wulsin for the relators:
    No quantities required are stated in the advertisement oi 'in the furnished forms for bids.
    
      No one can bid intelligently for quantities where they are not only not specified, but where the printed form for bids requires bids only for single articles. No one can ascertain what exact quantities are to be used in the county offices.
    The answer says that “ as to some of the articles bid for it is well understood that none, or a very small quantity in value, would probably be required.” The plaintiffs deny that they so understood; and if the fact be as stated, then the commissioners who make the advertisement, and their clerk, the auditor, who is supposed to make the printed form,, are not justified in including articles which are not wanted' in a list of those that are. It misleads bidders and opens the’ door to public favoritism and corruption.
    They chose to invite aggregate bids, naming each item separately, without specifying any amount to be used. The only way such bids can be properly compared is to add up the figures and see which is the lowest.
    Adding up the items in this manner the relators’ bid is the-lowest. This is not disputed.
    But the commissioners claim the right to estimate for themselves, after opening the bids, what quantities of each-article will probably be used, and then to award the contract as seems to them best. This has been their custom, say they.
    The custom of public officers can neither make nor unmake-law hi Ohio, and where no discretion is vested in an officer by the plain intent of the law, he can exercise none. His duty is wholly ministerial, and the courts will compel its strict performance by mandamus. Beaver & Butt v. Trustees, etc., 19 Ohio St. 109; Ex parte Black, 1 Ohio St. 30; Gauli v. Commissioners Phila., 2 Par. S. C., Penn. 220; Carpenter v. Bristol, 21 Pick. 159; Burnet v. Auditor, 12 Ohio, 54.
    This law is imperative and not directory, and must be-obeyed strictly by the officer to whom the law intrusts the' duty of executing it. Sedgwick on Const, and Stat. Laws, pp. 372-378, and cases cited; People v. Allen, 6 Wend. 486; Brady v. Mayor, etc., 20 N. Y. 319; Peoples. Meade 24 N. Y. 119.
    
      
      W. S. Scarborough (with Collins & Herron) for defend ants:
    1. The lowest bidder is tbe person wbo proposes to furnish tbe goods and work desired, for tbe smallest sum, or tbe least money. Tbe relators were not tbe lowest bidders. .
    2. The defendants in tbeir advertisement for bids reserved tbe right to reject any and all bids. So soon as they became satisfied that tbe relators’ bid was, witb reference to tbe relative quantities that would be wanted of all tbe articles bid for, practically not tbe lowest bid, it was tbeir right and duty to reject it.
    3. It would have been a clear violation of tbe law for tbe defendants to have awarded tbe contract to tbe relators. If tbeir bid was tbe lowest on its face, it was not so in fact. But it was scarcely so on its face. They must have known when they made the bid, that tbe county would not require of all these articles to the same amount in value; and they should have known that tbe commissioners could not ascertain tbe lowest bidder, in case there was more than one bid, t>y tbe addition of the rates named in the bids. Such mode, in tbe case of close bidding, would be about as likely to lead to a false result as a true one.
    4. If, under tbe notice and specifications, tbe lowest bidder is to be determined in tbe mode claimed by tbe relators, then the notice and specifications were so defective that all tbe bids should have been rejected; and in such case tbe peremptory writ cannot be awarded.
    The court will refuse tbe writ whenever it is manifest that it cannot have a beneficial effect. Ingerson v. Berry, 14 Ohio St. 315.
    5. If neither tbe relators nor Wilstach, Baldwin & Co-should have the contract, and tbe defendants are, nevertheless, disposed to award it to tbe latter, this proceeding does not furnish a remedy for tbe wrong, nor tbe way to prevent it.
   Day, J.

Tbe relators were competitors witb others in bidding for a contract to supply tbe public offices of Hamilton county with stationery, etc., during the year 1871, and they seek by this proceeding to compel the commissioners of the county to award the contract to them.

A brief statement will present the case.

November 28, 1870, the county commissioners, pursuant to the act of March 9, 1866 (S. & S. Stat. 86), caused notice to be given, that sealed proposals would be received until December 21, 1870, at noon, “for furnishing the courts, and •county offices with blanks, binding, printing and stationery until December 31,1871; that bids for each article must be stated separately, and that revised forms for bids would be furnished on application ” at the auditor’s office.

Printed forms for bids were furnished to the several bidders. They consisted of “ specifications for furnishing blank books, stationery,-printing and binding for the offices” of -the county, and contained over one hundred and fifty items. The forms were so constructed that the blanks, to be filled by the bidder with the price proposed, called for the price of the various articles singly, or per ream, quire, gross, dozen, etc.; but did not specify the quantity that would be required of any article to be furnished.

Among the proposals that were filed in compliance with the notice, the bid of the relators, and that of Wilstach, Baldwin & Co., are conceded to be the lowest. The items •contained in each of the bids were the same, but the aggregate amount of the several prices fixed in the bid of the relators was $481.10, and in that of Wilstach, Baldwin & Co. it was $510.96. This was the result if but one only of each of the items specified should be required.

But upon a fair estimate of the quantities of the several kinds of articles that would be required for the year, it appeared that the aggregate amount of the cost thereof, at the prices fixed in the bid of the relators, would exceed that of the cost at the prices fixed by Wilstach, Baldwin & Co. This resulted from the fact, that the prices fixed by the relators fol articles that would be required in small quantities were lower, and, for those that would be required in large quantities, were higher, than the prices fixed by Wilstach, Baldwin & Co. on. corresponding articles.

The commissioners refused to award the contract to the re lators. Thereupon they brought this proceeding.

The whole difficulty arises from the fact, that the quantities of each article that would be required under the proposed contract were not fully stated in the specifications fur nished to the bidders. They could not, however, have been so far misled thereby as to suppose that but one of each of the items would be required. For, apart from the evident understanding of the parties to the contrary, it is apparent from the specifications that, in many instances, more than one item would be required to make some of the articles mentioned therein; as, for instance, the various kinds of blank record books mentioned would require more than one-quire of paper for each book, the cost of which could be determined only by the number of quires it contained at the price fixed “ per quire,” and, for some “ blanks books,” at the-prices designated in the separate items of paper per quire,” and binding per quire.”

It is equally apparent from the specifications and the subject of the proposed contract, that they could not have supposed that an equal number of the various items would be-required.

Nor is it disputed but that the commissioners made a fair estimate of the quantities that would be required during the-ensuing year, amounting in the aggregate, under the bid of the relators, to $7,786.85, and under that of Wilstach, Baldwin & Co., to $7,472.37. But it is claimed by the relators, that as the specifications did not name any quantity, and as-their bid appeared on the face of the specifications to be the lowest, they are, by law, entitled to the contract.

The claim of the relators cannot be sustained without ignoring the purpose and object of the contract proposed to be-made, which was for a supply of blanks, books, stationery, etc., in such quantities as might be needed by the county offices during the period of one year. Although their bid was the lowest, if but one or the same number of every article specified should be required, yet, inasmuch as more than one, and different quantities, of the several articles would be required, in practical effect their bid was not the lowest. It could not be so considered without adhering with unwarrantable strictness to the letter of the bid, in disregard of its .substantial and plain import.

An award of the contract to the relators, then, would have been an evasion of, rather than a compliance with, the statute, which requires the commissioners to award the contract to the lowest responsible bidder.”

The statute, moreover, provides that all contracts entered into in contravention of its provisions, shall, as against the •county, be utterly void.

If the specifications furnished by the commissioners, and the bids founded thereon, were sufficient in law to warrant a •contract for the supplies contemplated, the relators were not entitled to it, for they were not the lowest bidders. If, as claimed by them, the proceedings of the commissioners were such that the contract could not be awarded to any other bidder, it does not follow that they were entitled to it, for, if the proceedings were so defective that the commissioners could not accept the lowest bidder for all the supplies to be contracted' for, they could make no valid contract with either of them.

In any view of the case, the relators fail to show that they have a clear legal right to the contract.

It is well settled that before a mandamus will be granted, the applicant must have a legal right, and that a plain dereliction of duty must be established against the officer. 1 Ohio St. 30; Moses on Mand. 124.

It follows that the writ must be refused.

Scott, C.J., and Welch, White, and McIlvaine, JJ., concurred.  