
    Board of Education v. Mills.
    1. By tlie proviso to section 55 of the School Law (70 Ohio L. 310, 211), township boards of education are required, when the cost of building a school-house, or other improvement, exceeds $500, to advertise and let the same to the lowest responsible bidder, unless in case of- urgent necessity, or for the security and protection of school property. This is a duty imposed upon the board, in its corporate capacity, and cannot be delegated to the local directors of the sub-district in which the school-house or other improvement is to be made.
    2. In an action by a contractor against a township board of education, to recover damages for its refusal to allow him to perform a contract made in its behalf by the local directors, for the building of a schoolhouse, the cost of which exceeds $500, where the validity of such contract is in issue, it must appear that the township board advertised and let the work in accordance with said proviso, unless it affirmatively appears that it was a case of urgent necessity, or was for the security or protection of school property.
    3. Upon such an issue the record and proceedings of the local directors, showing that it duly complied with said proviso, is incompetent, as the local board is not authorized 'to advertise, open bids and award the contract.
    4 Where incompetent evidence, which is material to the issue, is allowed to go to the jury in favor of a prevailing party against the objection of the other party, error, to his prejudice, will be presumed. In such case it is not necessary, in order to reverse the judgment, to show that the jury was, in fact, influenced thereby.
    Error to tbe District Court of Guernsey county.
    Stephen Mills brought his action against the board of education of Stock township, alleging: That, on the 8th day of September, 18.76, the plaintiff agreed with the defendant to furnish materials, build and complete a school-house for said defendant, to be erected in sub-district No. 12, which had been consolidated with sub-district No. 2, of said Stock township. The aggregate sum to be paid for the school-house, completed, was $1,444.69 ; that the plaintiff, in pursuance of said contract, proceeded to build the foundation, furnished a quantity of materials, and partly framed the building, when, on or about November 25,1876, the defendant repudiated said contract. This action was brought to recover damages for a breach of said contract on the part of said defendant. The defendant, in its answer, denies the making of said contract, denies that it wrongfully interfered with the plaintiff in the performance of said contract, and denies that the plaintiff was damaged in any amount by any act of said defendant. The issues raised by the pleadings in said court of common pleas were :
    1st. Was the contract counted upon in said petition made by the said parties ?
    2d. If made, did the said defendant wrongfully put an end to it ?
    Upon this issue, the case went to the jury, and on the trial, Mills, to establish the existence of a valid contract, read in evidence to the jury the minutes of the board of education of the township, showing, that on April 17, 1876, sub-district No. 2 was consolidated "with No. 12, to be designated No. 12, and that R. W. Culland, A. Archer, and James Kilbungh were appointed a committee to locate the school-house for the new sub-district, also that a township levy of $1,800 was ordered to build the new school-house.
    July 15, 1876, the clerk was instructed to advertise for an election of three local directors for this sub-district. At the same meeting, “ the board authorized, the local directors of sub-district No. 12 to proceed to the building of a school-house in said sub-distriot.”
    September 18, 1876, the board authorized the local directors to proceed as a building committee to erect their schoolhouse.
    September 30, 1876, the board, at a special meeting, ordered the clerk not to issue any orders for funds to build a school-house in sub-district No. 12, unless it be built at or near the place located by the board.
    This is the substance of all the action taken by the board of education of the township on the subject.
    The plaintiff, further to maintain the issue on his part, read to the jury, against the objection of defendant, the record and proceedings of the local directors of sub-district No. 12, showing, that on August 5, 1876, they met and selected a site for a school-house, and decided to advertise for bids to erect a two-story house.
    September 8, 1876, the local board again met, opened the bids, and awarded the contract to Mills, and, on the same day, entered into the contract on which this action is brought.
    To the introduction of each and all of said entries from the records of proceedings of said local directors in evidence, except the first entry of August 5, the defendant, by its attorneys, objected, upon the ground that the same was incompetent. The objection was overruled, and exception taken.
    The plaintiff, further to maintain the issue, introduced evidence, showing, that the local board advertised four w'eeks for bids; that they met, opened the same, and awarded the contract to Mills, who was the lowest bidder'; that they supposed they had authority to do this; that no regulations were prescribed by the board of education for their government in respect to this matter, and neither was there any special instructions or directions given them, other than is shown by their proceedings.
    It appears that the local board supposed, that under their authority from the township board of July 15, wherein they were authorized to proceed to the building of a school-house in said sub-district, they were authorized to advertise and let the work. This seemed also to be the opinion of the township board.
    Evidence was also adduced as to the breach of said contract, and the plaintiff’s damages.
    It was admitted by the parties, that the board of education never advertised for bids, or took any other steps in the matter of building the school-house in No. 12, except as stated in the record read in evidence, and that no bids were ever received and filed by the clerk of said board of education, or that the board ever opened any bids for the same.
    The plaintiff having rested, a motion was made to arrest the testimony from the jury, and to direct a nonsuit, which was overruled, and exception noted. Defendant then asked tbat the jury be instructed to find for defendant, which was refused, and a bill of exceptions tendered, which the court finds to be a true bill, and signed and sealed the same.
    There was a verdict and judgment for plaintiff, which was affirmed by the district court, and this proceeding is to review that judgment of affirmance.
    
      Chambers <& Gibbs, for plaintiffs in error :
    By section 55 of the act of 1873 (70 Ohio L. 210-11), the township board of education is required, when the cost of a school building exceeds $500, to advertise for proposals, and the authority of the board to act in such case cannot be delegated. Sedgwick Const, and Stat. Cons. 330 ; Birdsall v. Clark, 73 N. Y. 7; Thompson v. Schermerhorn, 6 N. Y. 92; Thompson v. Booneville, 61 Mo. 283; State v. City of Patterson, 34 N. J. L. 167; City of Bryan v. Page, 51 Tex. 532; Dillon on Muu. Corp. § 6Ó, Lauenstein v. City of Fond du Lac, 28 Wis. 336; State v. Bell, 34 Ohio St. 194.
    
      Belford <& Olcey and D. S. Spriggs, for defendant in error.
   Johnson, J.

It is conceded that the board of education never advertised for bids or took any other steps in the matter of building this school-house, except to levy a tax for the same, and to authorize the local directors of the district to proceed to the building of the school-house. The local board, supposing they were authorized to do so, advertised for bids, opened the same, awarded the contract to Mills, and, on the same day, entered into a written contract with him, by which they obligated the township board to pay $1,444.69 for the house when completed. The contract was repudiated by the township board, and this is an action for damages occasioned by reason of their refusal to allow him to perform the contract.

On the trial to a jury, the plaintiff, to maintain the issue on his part, that the contract was valid and binding on the township board, sought to show, by the record of the proceedings of the local board, that the law, which requires that when the cost of the building exceeds $500 it must be let to the lowest bidder after public advertisement, had been complied with. This was admitted over the objection of defendant. ' The admissibility of this evidence is the sole question here. The powers of the township and local boards of education which govern’this case, are found in the act “for the reorganization and maintenance of common schools.” 70 Ohio L. 195. Section 31 declares, that “ no contract shall be binding upon any board of education, unless such contract shall have been made, or authorised to be made, at a regular or special session of said board.” The only authority for making this contract was the action of July 15, where it appears that “the board authorized the local directors of sub-district No. 12 to proceed to the building of a school-house in said sub-district; ” and the further action of Sejkember 18, when the local directors were authorized to proceed as a building committee to erect this schoolhouse. It is clear that the township and local board each acted on the assumption that as the improvement would cost more than $500, the duty of a public letting could be delegated to the local board. Acting on this construction of the law, the latter board did, so far as it was concerned, fully comply with this requirement. If this duty was one which the township board alone could discharge, and was of such a nature as that it could not be delegated, then the record and proceedings of the local board to show a compliance with the law, was incompetent to bind the township board.

By section 55 of the act, the authority to build schoolhouses is conferred upon the township board and it is made the duty of -the local boards, under such rules and regulations as the township boards may prescribe, to build, repair and furnish them, and the township boards are liable, in their corporate capacity, for all contracts made by such local boards, in accordance with the rules and regulations prescribed by township boards, or with the resolution of the board. It is provided, however, that when the cost of the improvement will exceed $500, except in cases of urgent necessity, or for the security or protection of school property, the township board shall advertise for bids, either by publication in a newspaper, if there be one in the county, or by posting notices, and let the work to the lowest responsible bidder. The minute provisions relating to the duties of the township board in letting such contracts, show that a personal trust involving judgment and discretion is imposed on it, as a corporate body, which cannot be delegated to the local directors. In the construction of this proviso, we adopt with approval, the language of counsel for the plaintiff in error.

“ The terms of this section imperatively require this duty to be performed by the Board of Education ‘ Said Board shall advertise for bids for the period of four weeks,’ etc. ‘The bids, duly sealed up, shall be filed with the clerics' ete. ‘The bids shall be opened at the next meeting of the Board, and publicly read by the clerk, and entered in full on the records of the Board? ‘None but the lowest responsible bid shall be accepted, but the Board may in their discretion accept any bid for both labor and material,’ etc. ‘When there is reason to believe that there is any collusion or combination among the bidders or a/ny number of them the bids of those concerned therei/n shall be rejected? These provisions and requirements evidently show that they must be exercised by the Board of Education, and from their nature cannot be exercised by any other authority. In this case the action of the board of local directors in assuming to act on behalf of the township board, in awarding this contract was unauthorized and void.”

The court, therefore, erred in admitting the record of the local board, showing that it did advertise and let the work.

II. But it is said the bill of exceptions does not purport to set out all the evidence, and the plaintiff may have adduced evidence showing that it was a case “ of urgent necessity or for the security and protection of school property,” in which cases a public letting may be dispensed with. To this there are several conclusive answers.

The bill of exceptions contains the record and proceedings of the township board, and the admission that that board did not advertise or let the work or make the contract, and that it took no other steps in the matter. This excludes the idea, that it had determined that it was a case of urgent necessity or for the security or protection of the school property. Again, where incompetent evidence, material to the issue, is permitted to go to the jury, error prejudicial to the opposite party will be presumed, and in such a case the injured party is not bound to set out all the evidence and show he was prejudiced.

In such case, unless the bill of exceptions shows that he was not prejudiced, the judgment will be reversed. Baldwin v. Bank of Massillon, 1 Ohio St. 141; Sherer v. Piper, 26 Ohio St. 476; Lowe v. Lehman, 15 Ohio St. 179.

This rule is not in conflict with the one which requires all the evidence to be set out where it is sought to reverse for error in refusing a nonsuit, or in overruling a motion in arrest of judgment, or for a new trial on the ground that the verdict is against the evidence.

Judgment reversed and cause remanded.  