
    State ex rel. Ross v. Board of Education.
    1. Section 3988, clause 4, of Revised Statutes, which provides that a hoard of education engaged in the erection of a school building, “may, in its discretion, reject all the bids,” does not authorize the acceptance of any “ but the lowest responsible bid.”
    2. In mandamus the relator who seeks to compel a board of education to award him the contract for erecting a school building must show a Clear legal right in himself. It is not enough to show defects in the title of another to whom the contract has been awarded.
    3. The board may waive defects in the form of a bid, where such waiver works no prejudice to the rights of the public for whom the board acts.
    
      4. Where a hid is uncertain as to whether it is for parts of a job as well as for the whole, and the bidder induces the board to construe it as for all or none, such bidder cannot afterwards complain that the board awarded the whole job to a lower bidder, although under a different construction, the board would have been bound to award to such bidder a portion of the work.
    MANDAMUS.
    This proceeding is prosecuted by the relator to compel the respondents the Board of Education ,of Delaware county, to award to him a contract for the construction and completion of a High school building., ♦
    It appears that the respondents,.having determined to erect a High school building in the city of Delaware,,under section 3988 of Revised Statutes, advertised for bids from contractors. The time for receiving bids ended at. noon, August 15, 1884. At that time sixteen bids were on file with the clerk of the board, some of which were for- the labor and materials em braced in the whole building, some for the labor and materials in part of the building only, and others for the; labor and materials embraced in the whole work, each part of which was separately stated, with the" price thereof, in the bids.
    To a full understanding of the ease before us, it is only necessary to refer to the bid of J. W. Newell, to whom the board awarded the contract, and the bids of the relator which ■were rejected by the board.
    Newell’s bid was as follows:
    
      “ Gentlemen : I propose to furnish all .material and labor necessary for the erection and completion of High school building according to plans and specifications on file in your office for the sum of $20,947.
    
      “ I also propose to furnish materials and do the carpenter work on above said building for the sum of $5,990.
    J. W. Newell
    “ I propose to stands urety for Joseph Newell that should the contract for building above said building be awarded him, or the carpenter work thereof, that he will enter into contract for the faithful performance' thereof. D. H. BatteNfield.”
    
      The relator’s bids were as follows :
    “ Gents : I will build your proposed new school building, according to plans and specifications furnished by--architects and on file with the clerk of this board for the following named prices. To wit.
    Labor. Material.
    “ Excavating . $600.00
    Stone work, Rubble 1,015.95 $1,100.00
    Cut stone work . 1,041.15 900.00
    Erick work. 2,475.00 4,500.00
    Carpenter . 2,000.00 4,875.50
    Gaiv. iron, slate and tin wo 525.00 1,325.00
    Plumbing . 65.00 200.00
    Painting and Glazing 345.00 500.00
    Plastering 375.00 500.00
    “Total, $8,442.10 $13,900. 50
    “ Principal: A. D. Ross.
    “Sureteis: A. E. Taylor.’
    Also, on separate paper, as follows :
    “ Gents : I will build your proposed new school building according to plans and specifications furnished by-architects and on file with the clerk of this board for the following named prices. To wit:
    Labor, $8,442.10
    Material, 13,900.50
    “Total, $22,342.60
    “ Principal: A. D. Ross.
    “ Sureties: A. E. Taylor.”
    The testimony further shows that on the afternoon of same day, all the bids having been opened, the board on inspection ■found that by selecting the lowest bids for parts of the work, including the bid of relator for plastering, the work could be let for less than the lowest bid for the whole work, and proposed to so-let the work to different bidders, when they were informed by relator that bis bid was for tbe whole work and he must have “ all or none,” and thereupon the board, finding that the work could not be let in parcels to different bidders, excluding the bid of relator, proceeded to ascertain the lowest bidder for the whole job, whereupon, and before any bid had been accepted, the relator made demand in writing as follows :
    “ DELAWARE, Ohio, August 16, 1884.
    
      “ To the Boai® of EduoatioN of the City of Delaware.
    
      “ GeNtlemen : I, A. D. Boss, a bidder for tlie erection and completion of a school building in the city of Delaware under and by virtue of an advertisement for bids for the same by'your board to be received up till noon, the 15th day of August, 1884, do hereby protest and object to the receiving of all the bids except my own and to the award of the contract to any of said bidders except to me. For the reason that my bid is the lowest legal and responsible bid received by your board. And I hereby especially protest and object to the receiving of the bid of Joseph Newell, and the awarding to him by your board the contract for the erection and completion of said school building, for the reason that his said bid is not a legal bid, as provided by law, in that the same does not separately state with the price thereof for the labor and the material as required by law.
    “ I further claim that my bid is in all respects according to law and is the lowest legal and responsible bid received by your board, and that I am entitled by reason thereof to receive at your hands the award of the contract for erecting and completing said school building according to the terms of my said bid and the plans and specifications submitted by your board.
    “ And I hereby demand that if said contract is awarded by your board to any of the said bidders that the same be awarded to me, and that I am now ready, able and willing to do and perform .on my part all the obligations of the same.
    
      “ A. D. Boss,
    by
    
      “ H. Bussell, his agent.”
    
      Afterwards the bid of Newell for the whole work was accepted by the board, which action was equivalent to a rejection of relator’s bids, and thereupon this suit was commenced.
    
      Powell (& Riolcetts, for the relator.
    
      Ga/rper & Vandeman, for respondent.
   McIlvaine, J.

In the first place, it is objected to the granting of relief to relator that the court would thereby control the discretion vested in the board by subdivision 6 of section 3988 of Revised Statutes, which reads as follows: “ None but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material, which is the lowest in the aggregate for such improvement or repairs.”

This objection is not well taken. The discretion given by this clause is to reject all the bids. This is the only discretion given. If it is determined to accept a bid, there is no discretion as to which bid must be accepted. If the lowest responsible bid be rejected, and any other be accepted, the action of the board may be controlled by mandamus, without violating the rule that a matter of discretion is not subject to control by proceedings in mandamus.

In order to entitle the relator to the relief prayed for,' however, he must show a clear, legal right in himself. It is not enough to show that the board awarded the contract to Newell without sufficient warrant, or that relator’s right to the contract, on comparison, was better than that of Newell, who is not a party to this proceeding.

Now it is clear, beyond doubt, that the bid of relator for the whole job was not the lowest bid, if Newell’s bid can be .considered at all. The board did, however, consider Newell’s bid, and finding it to be the lowest responsible bid, accepted it and rejected relator’s for that reason. If the board erred in this, the relator, nevertheless, must show that his bid was entitled to the favorable consideration of the board.

Section 3988, clause 4, provides that “ Each bid shall contain the name of every person interested in the same, and shall be accompanied by a sufficient guarantee of some disinterested person, that if the bid be accepted, a contract will be entered info, and the performance of it properly secured.” Now, were the words “ Sureties, A. E. Taylor,” at bottom of relator’s bids, equivalent to the guarantee required by this clause 1 "We think not. ¥e are quite satisfied that had the bid of Boss been accepted, and he had refused to enter into a contract, no action for such refusal could have been maintained against Tayloi’.

To this, it is said by relator’s counsel, that his bid was not rejected on account of such defect, but solely on the ground it was not the lowest. True, but if Newell’s bid had been rejected on account of its defects, as relator claims it should have been, it does not follow that the board would have waived the defects in relator’s bid, and would have accepted it. It appears the board did not consider the defects in either bid-; but it is reasonable to presume that if the defects in Newell’s bid could not be waived, the defects in Boss’ bid would have been considered and the bid rejected on account thereof. Surely the latter defect was in matter of substance and quite as important as the former. While we are inclined to think -that the board might have waived detects in the performance of conditions imposed by the statute for the protection of the public, still it is clear to our minds, if it be otherwise, that the defect in relator’s bid was as fatal to it, as'the defect in New-ell’s bid was fatal to it. If one could not be waived, the other could not; and if both could be waived, the relator’s bid should have been rejected because it vvas not the lowest.

Again. It is claimed that if relator has not shown himself entitled to an award of the contract for the whole building, he is, nevertheless, under his bid, entitled to a contract for some parcels of the job. At common law it was undoubtedly settled that the relator must show himself entitled to the relief demanded or he could take nothing by his writ. If, however, recent legislation which makes proceedings in mandamus a civil action to be commenced by filing a petition, entitles the relator to a more liberal judgment and gives relief for a part, where the whole prayer can not be granted, still the.reasons for refusing the whole in this case justifies the refusal of any part. It it were doubtful,.whether the bid, properly construed, was for the “ whole job ^ or nothing ” as we have found frhat relator claimed when the bid was first opened, and as is clearly set forth in the written demand of the next day, we think the board did not err in refusing the relator any part of his bid.

The validity of the contract entered into between the board of education and Newell is not a question involved in this case.

Writ refused.  