
    State of Ohio, ex rel. John W. Baen, v. Walker W. Yeatman, Auditor of Hamilton County.
    1. A mandamus will not be awarded in the absence of a clear right, in the party seeking the writ, to the object sought to be obtained by it.
    2. A contract of county commissioners for the reeopying of the plats of the county for use in the auditor’s office, the estimated expense of which exceeds five hundred dollars, under the second section of the act relating to the duties of county commissioners, as amended March 9, 1866 (S. & S. 86), is void, as against the county, unless it be made with the lowest responsible bidder, in accordance with the provisions of that section.
    3. Where such contract is made, in disregard of the provisions of that section, a mandamus will not be awarded to compel the auditor of the county to draw a warrant on the treasurer for the payment of the sum allowed by the commissioners as the amount due on the contract.
    Application for a writ of mandamus to compel the auditor of Hamilton county to draw a warrant on the treasurer for the payment of the relator’s claim against the county, and is based on the following statement:
    “On the 11th day of June, 1869, the board of county -commissioners of Hamilton county'adopted the following preamble and resolutions:
    “‘It being the unanimous conviction of the board that the recopying of the plats of the county is essential for the .auditor’s office and the public convenience, it is hereby ordered :
    
      “‘First. That the recopying of said plats be resumed.
    “ ‘ Second. That the following rales shall govern the work, viz : a, the plats to be executed with entire correctness ; b, the work to be done in a plain, neat, and distinct •.style, avoiding all ornaments; c, forty feet to an inch shall be used for subdivisions, and two chains to an inch for land tracts.
    “ ‘ Third. The arrangement of the work to be under the immediate control of a competent man, to be appointed by this board, with the approval of the auditor, who shall select his assistants, with such approval; and that for all work ■done and delivered to said board, which shall be found ■satisfactory to said board and said auditor, compensation shall be paid at a rate to be fixed upon before said work ■shall be commenced.
    “ ‘Resolved, That it is the unanimous conviction of this board that a fair compensation shall be allowed to the county auditor every year for his assistance and oversight during the process of said work.’
    “And afterward, to wit, on June 12, 1869,the said John W. Baen addressed to said board of county commissioners :a communication in the words and figures following, that is to say :
    •“‘ To the Honorable, the Board of County Commissioners of Hamilton County:
    
    “ ‘ Gentlemen : The undersigned proposes to continue the platting in accordance with the resolution of your honorable board passed June 11,1869, as follows:
    “ ‘ I will do the work, and finish it, arranged complete for binding, including the title-page of each book of forty to sixty sheets, for twenty-five dollars per sheet, you furnishing all material and instruments, and doing all surveying necessary to be done; the work to be done to the entire satisfaction of the board, and paid for as fast as finished and delivered; provided, however, that enough money shall be allowed to pay the workmen, either weekly or monthly, as may be agreed upon; and, if my proposition is accepted, will commence the work immediately.
    “ ‘Yours, etc., John W. Baen.
    “ ‘ June 12, 1869.’
    “And, on the same day, the said proposition was accepted by the county commissioners, with the approval of the auditor; and said acceptance was entered on the minutes of proceedings of said county commissioners on September 13,1869.
    “And thereupon the said John W. Baen entered upon the performance of said work, and therein continued to the satisfaction of said county commissioners and county auditor until December 30, 1871, up to which date he had been paid for all work done by him under said contract, except in the sum of twenty-eight hundred and twenty-three dollars; and on said date he rendered his bill to said county commissioner’s in full for all work done under said contract since his last previous settlement with them, showing said sum of twenty-eight hundred and twenty-three dollar’s due him therefor, which bill a majority of said board of county commissioners authenticated and approved in their usual mode, by attaching their signatures, and directed the then-county auditor, Walker M. Yeatman, to draw his warrant upon the county treasurer for the payment of the same, and caused to be entered upon their minutes of proceedings; their authority to said county auditor to pay said amount to said Baen, by drawing his warrant on the county treasurer therefor.
    “But, although by said Baen requested, said Walker M. Yeatman, county auditor of Hamilton county, did refuse,, and doth refuse, to draw his warrant upon the county treasurer of said county in favor of said Baen for said sum.”'
    
      Iloadly $ Johnson, for the relator :
    I. Had the commissioners authority to direct the work-in question to be done ? We think the case at bar is within the rule established in State, ex rel. Cooper, v. Armstrong, 19 Ohio, 116, and Comm’rs v. Hutchins, 11 Ohio, 368. The expenditure in question is directly warranted and required by section 1, act of March 25,1851. S. & 0.1282. See also the-act of April 2, 1859, 2 S. & O. 1282, and the act of March 19, 1850, S. & O. 555.
    Even in the absence of direct statutory authority, the-commissioners possess the power in question, as a necessary consequence of their relations to the public. The act of March 9, 1866, S. & S. 86, proceeds upon the hypothesis that the power exists. State, ex rel. Mills, v. Comm’rs, 20 Ohio St. 425; Shanklin et al. v. Comm’rs, 21 Ohio St. 583.
    “ Any public records ” may be transcribed under the acts of 'April 17, 1857, and April 2, 1859. S. & O. 1282. The-limitation of compensation to ten cents per hundred words, ■applies only to that kind of transcribing in which such computation was practicable, leaving the price for copying maps and plats without limit. As the act of March 26, 1863, (S. & S. 657), applies to the transcribing deeds, etc., in the recorder’s office, the acts of 1857 and 1859 can not apply to that class of records.
    II. Was it necessary to advertise, etc., under the act of March 9,1866? S. & S. 86.
    1. This act does not extend to the transcribing of records, under the act of March 25, 1851, S. & C. 1282, which is to He done by the auditor or recorder.
    2. This work is not within the scope and purview of the .act, no more than the employment of legal counsel for the •commissioners. It is the appointment of a competent man to do skilled labor. How could such work be let to the •“ lowest responsible bidder ? ”
    3. As they could, at any moment, have dismissed the relator, the contract was by the sheet only, and the estimated ■expense was not $500. There was no agreement to allow him to do all the replatting, nor more than one sheet.
    4. If within the law, it is within the first proviso or exception — being the purchase of articles necessary to the .auditor’s office, in the discharge of the duties of his office. .Note the recital in the resolution of the commissioners.
    
      C. JB. Blackburn, contra:
    I. Unless it appears from the affidavit that the relator has a legal claim against the county, the auditor can not be ■compelled to draw his warrant, by mandamus, though the commissioners have allowed it, because the relator has not shown a clear legal and equitable right. Tappan on Mandamus, 28, 99, and authorities there cited.
    It is true the duties of the auditor are purely ministerial. The Comm'rs of Putnam County v. Auditor of Allen County, 1 Ohio St. 325. The present law regulating his duties in >the matter will be found in 67 Ohio Laws, 105.
    But still, if it appear on the face of the claim that it is not a proper charge against the county, he ought not to sign a warrant for its payment, and the court will not compel him to do so. The People v. Lawrence, 6 Hill, 244; Waldron v. Lee, 5 Pick. 323; People v. Tremaine, 29 Barb. 96; People v. Burrows, 27 Wend. 92; The State, ex rel. Olds, v. Comm’rs, 20 Ohio St. 421; C. W. & Z. R. R. Co. v. Comm’rs, 1 Ohio St. 77; Cass Tp. v. Dillon, 16 Ohio St. 39; Boyer v. Morgan, Auditor, etc., 5 Ohio St. 583; The People v. Stout, 23 Barb. 349; Hudges v. Buffalo, 2 Denio, 110; Halstead v. Mayor, etc., 3 Comst. 430.
    II. The commissioners could only make such a contract, if they could make it at all, by proceeding according to the-act of March 9,1866. S. & S. 86. Comm’rs v. Auditor of Allen County, 1 Ohio St. 326; Comm’rs v. Mighels, 7 Ohio St. 109; Western College v. Cleveland, 12 Ohio St. 375; The State, ex rel. Treadwell, v. Comm’rs, 11 Ohio St. 183; The Queen v. Ellis, 6 Q. B. 501-516; Stricker v. Kelly, 7 Hill,. 9-25; Swift v. Williamsburg, 24 Barb. 427; Cowen v. West Troy, 43 Barb 48; Brady v. The Mayor, etc., 20 N. Y. 312; Donovan v. New York, 33 N. Y. 291; McSpeeder v. New York, 7 Bosw. 601; Ellis v. Mayor, etc., 1 Daly, 102; Briggs v. Mayor, etc., 2 Daly, 304; The State, ex rel. v. Mayor, etc., 29 Md. 110; Mayor, etc. v. Eschbach, 18 Md. 276; Clark v. Des Moines, 19 Iowa, 209; Friend v. Dennett, 4 C. B. N. S. 576-582; Rutledge v. The Local Board, 2 F. & F. 16; Samprell v. Billerica Union, 3 Exch. 283-305.
    And though the work has been done, no action to recover for it will lie. Cowen v. West Troy, 43 Barb. 52; Thompson v. Schermerhorn, 9 Barb. 152; 9 Selden, 92 ; Brady v. Mayor, etc., 16 How. 432; 20 N. Y. 312; Bonested v. Mayor, etc., 20 How. 240; McSpeeder et al. v. Mayor, etc. 20 How. 395; 5 Barb. 649; 16 How. 432; 2 Denio, 113; 2 Comst. 165; 12 Wend. 165; 3 Comst. 430; 2 Barb. 104; 1 Hill, 545; 1 Denio, 510; 1 Sand. (N. Y.) 27; 7 Met. 438; 12 Cush. 103; 13 Mass. 272; 11 Pick. 396; 1 Allen, 108; 23 Pick. 71; 45 Maine, 496; 6 Ind. 403; 9 Ind. 224; 18 Iowa, 199; Marsh v. Fulton County, 10 Wall. 676.
    
      
      Dodds Wilson, on the same side:
    This work is not within the proviso of the act of March 9, 1866. S. & 8. 86.
    The plats in the auditor’s office are not records of his office, there beiug no statute requiring their deposit or record there. Ramsey v. Riley, 13 Ohio, 157; Webster v. Harris, 16 Ohio 490.
    They also cited Reeside v. Walker, 11 How. (U. S.) 289, in-support of Mr. Blackburn’s first proposition.
   Day, J.

A writ of mandamus is sought in this case for the purpose of obtaining payment of a claim against the county of Hamilton. It is based on a contract of the relator with the commissioners of the county, and the claim has been allowed by them: still, if it appears that the ground of the claim is invalid, and that the relator has no legal right to enforce payment, the writ must be refused for a mandamus can not be awarded in the absence of a clear right in the relator.

The claim is based on a contract with the commissioners for “the recopying of the plats of the county” for use in the auditor’s office, and the validity of the contract is questioned. The board of county commissioner’s can exercise only such powers as are conferred upon them by law. Ve find no statute expressly empowering them to make the contract, nor do we think the power to make it can be inferred from the acts of 1851, 1857, and 1859 (S. & C. 1282), from which it is claimed in argument. These acts relate ta the transcribing of county records, for their preservation and use in the offices to which they belong; and the persons employed to do it are to be compensated at a fixed rate by the hundred words. They are not broad enough to authorize a contract for the reconstruction of a set of county plats from the records of the several county offices and surveys, which are not matters of record in the office for which-these plats are made, and which are not susceptible of being paid for by the hundred words, at the rate fixed in these statutes.

"We need not determine whether the power to make the contract in question can be implied from the statutes imposing certain duties on the county auditor, for, if it exists, we are, in this case, confronted with another difficulty, in the amount of the expenditure contemplated by the contract.

The proposal of the relator, accepted by the commissioners, constituted the contract. From that it appears that, at the rate stipulated, “each book” of the work contemplated would cost from ten to fifteen hundred dollars. The contract was broad enough to embrace the whole work; nor is it necessarily limited by the fact that it was to be paid for as fast as finished and delivered. Moreover, the case shows that the amount of the work contracted for ■exceeded twenty-eight hundred and twenty-three dollars; but how much more does not appear, nor is it material, ■since it clearly appears that the expenditure contemplated by the contract exceeded five hundred dollars.

The second section of the act relating to the duties of ■county commissioners, as amended in 1866 (S. & S. 86), provides :

“ That the county commissioners of any county shall not make, suffer, or cause to be made, any purchase or contract for any outlay of money for or on behalf of their county, the estimated value or expenses of which shall exceed five humlred dollars, without first causing twenty days’ notice io be given in one or more newspapers of general circulation in the county that proposals will be received for the performance of any job or work, or for furnishing any goods, wares, merchandise, or materials for said county; and the said county commissioners shall make, or cause to be made, ■such purchase or contract with the lowest responsible bidder, upon such person or persons giving bond to the county, with security, to be approved by the county commissioners, that the work will be faithfully performed, and the goods, wares, merchandise, or materials will be honestly delivered ■according to contract.....Provided, that this section ■shall not be construed to extend to the purchase of any artides necessary to any of the county officers in the discharge of the duties of their offices, except stationery and printing : And provided farther, that the said commissioners may, nevertheless, by a unanimous vote, enter upon the minutes of their proceedings, and stating the grounds thereof, dispense rvitli the operation of this section in eases of urgent necessity, when the estimated expenses or outlay ■does not exceed one thousand dollars: Provided further, that all contracts or purchases entered into in crmtraven•tion of the provisions of this section shall, against the •county, be utterly null and void.”

There is nothing in the character of the work to be contracted for tbat excludes it from the operation of this section of the statute. If the “ lowest responsible bidder ” .should not be possessed of the skill requisite to perform the work in a suitable and acceptable manner, be would be under the necessity, as in other cases, of employing those who have the capacity to do the work in a manner that will secure a faithful performance of the contract.

Nor can the contract be regarded as the “ purchase” of “ articles ” within the meaning of the first proviso of the -.section. On the contrary, it was a contract for work to be ■done. It is, moreover, apparent from the second proviso, .authorizing the commissioners to suspend the operation of the section, in case of urgent necessity, when the outlay •contemplated does not exceed one thousand dollars, that, when the sum to be expended exceeds that amount, and •such necessity does not exist, the case must be due clearly within the meaning of the first proviso, to be thereby exempted from the operation of tbe section. A less strict -construction of tbe proviso would open the way to tbe ■evils provided against by the section. The obvious policy of the section is, to prevent the public treasury from being plundered by favoritism, rings, and frauds; and' it ought not to be so construed as to defeat its purpose by a judicial repeal of its salutary provisions.

If it be conceded, theu, that tbe commissioners had the .power to make the contract in question at all (which we do not decide), it could only be done in accordance with the provisions of this section, as it contemplated an outlay of more than five hundred dollars. The statute was disregarded, and, by its express provisions, the contract was, therefore, void as against the county. The right of the relator to payment out of the county treasury, founded solely on the contract, therefore fails.

Mandamus refused.  