
    The State of Ohio ex rel. Walton et al. v. Hermann et al., Commissioners Water Works of the City of Cincinnati.
    
      Board of public works — Authority of, to make contracts — Discretion of board not controlled by mandamus.
    
    A statute which confers upon a board of public officers authority to make a contract "with the lowest and best bidder,” confers upon the board a discretion with respect to. awarding the contract which can not be controlled by mandamus.
    (Decided November 27, 1900.)
    In Mandamus. Application for alternative writ.
    The relators allege that the defendants, who were the commissioners of waterworks for the city of Cincinnati, took all necessary preliminary steps as required by the statute for the making of a contract for the construction of a tunnel to be used in supplying said city with water. Tbe engineer’s approximate estimate was $662,-943. Pursuant to due and legal advertisement for bids, the relators filed a proposal to do tbe work specified for tbe sum of $655,950, and tbe defendant, The W. J. Gawne Go., for $659,230. Tbe petition also contains averments tending to show the ability and competency of tbe relators to perform tbeir work, and that with respect to ability and competency, they were better bidders than tbe W. J. Gawne Co. They allege that they proposed, by tbe giving of bond, and in all other respects, to comply with tbe requirements of tbe statute, that tbe defendants rejected tbeir bid and awarded tbe contract to tbe W. J. Gawne Go., and they pray for a writ of mandamus compelling tbe commissioners to award tbe contract to them.
    
      John G. Healey and Malcom MoAvoy, for relators..
    
      Charles J. Hunt; J. B. Frinkel; Wade H. Ellis and Ellis G. Kinkead, contra.
   By the Court:

Tbe question is -whether tbe statute under which the defendants are acting requires them to award a contract of this character to tbe lowest bidder, or gives to them a discretion to determine that a bidder not tbe lowest may nevertheless be tbe best. Tbe question is to be resolved by a construction of tbe phrase “lowest and best bidder,” occurring in tbe eighth subdivision of section 2435-7, which requires that “said commissioners .shall enter into a contract with tbe lowest and best bidder upon his giving bond,” etc. In the case of Boren & Guckes v. Commissioners, 21 Ohio St., 311, it was held that a statute which required that the “contract shall be awarded to, and made with, the person or persons who shall offer to perform the labor and furnish the materials at the lowest price and give good and sufficient bond, etc.,” denied to the commissioners any discretion to determine that any but the lowest bidder was the best bidder. In the case of The State ex rel v. Commissioners, 36 Ohio St., 326, it was held that a statute which required a contract to be awarded “to the lowest and best bidder,” conferred upon the commissioners a discretion which the court would not control by mandamus. With these decisions in mind the general assembly passed the act whose provisions are now the subject of contention. We must presume that when the words which had been construed to confer a discretion upon the commissioners were deliberately chosen by the legislature, it was with the intention that that discretion should be conferred.

Writ refused.  