
    The State v. Commissioners.
    1. Where the county commissioners proceed, under tlio provisions of title VI, chapter I, pt. 1st, Revised Statutes, to advertise for sealed proposals for the furnishing of labor and materials for the erection of a courthouse, and the bids are such that the contract must be let for the entire job, it is their duty to award such contract to the person or persons offering to perform the same at the lowest price, and give sufficient bond to the acceptance of the commissioners for the faithful performance thereof.
    3. There is no such conflict between sections 794 and 799 Revised Statutes as requires the rejection of either. Section 794 provides for letting contracts, in certain cases and under certain conditions, to separate bidders representing different trades, in respect to which, the provisions of that section and not section 799 apply. In all other cases the provisions of the latter section govern.
    3. Where a contract is to be let for the entire job, because the aggregate of the separate bids exceeds the estimated cost of- the improvement, the ■ . case is one not provided for by section 794 ; and in determining who is entitled to the contract, the provisions of section 799 (which is identical with section 10, of the act of April 27, 1869, 66 Ohio L. 52), as construed by Boren v. Commissioners, 21 Ohio St. 311. are applicable and govern.
    Mandamus.
    The commissioners of Marion county, being authorized and. having determined to erect a courthouse in that county, procured the necessary pians, drawings and specifications to be made and filed therefor; the estimated cost thereof to be $100,000. Thereupon the commissioners advertised for bids or proposals for doing the work, requiring each proposal to be accompanied by a bond, in the sum of $1,000, conditioned that the bidder would enter into the contract, if awarded to him, and also give a bond with good and sufficient sureties in the sum of $25,000 that he would well and faithfully perform the contract. •
    By the terms of the notice, proposals were to be received up to one o’clock in the afternoon of March 29, 1883. The relator, by a proposal in due form, with the required bond accompanying the same, proposed to do the work for $91,600. Gr. Leffler & Go. proposed tt> do the work for $99,980, and William Saint for $92,322.24. Bids were also received from different parties for doing the separate parts of the work represented by different trades, and also several other bids for doing the entire work. All of the separate bids when aggregated, and all the bids for the entire work except those mentioned, exceeded the estimate’ of $1.00,000. On the day named in the notice the bids were opened and the commissioners adjourned until the next day without awarding the contract. On the next day, March 30, they awarded the contract to Leffler & Go. for $99,980, but did not announce their action until the Monday following. The relator, upon learning that the contract was thus awarded while lie was the lowest bidder, tendered to the commissioners a contract duly signed by him, and also a bond with sufficient sureties in the sum of $25,000, conditioned that he-would well and faithfully perform the contract, and demanded the same. The commissioners having refused to give it to him, he filed his petition in this court setting up the above recited facts and praying that defendants bo compelled, by mandamus, to awa^-d him such contract.
    The answer admits all of the facts thus recited, except the sufficiency of the sureties on the bond tendered by relator, respecting which it says defendants have no knowledge, and hence deny its sufficiency. The proof however shows that the bond is sufficient, both in form and as to the responsibility of the sureties.
    The answer alleges that the relator was not the lowest and best bidder. That the commissioners carefully and honestly considered all the bids, together with the skill, responsibility, promptness,'honesty and experience of each bidder. That the cost of the building, if an honest job was done, would be $100,000; that relator was intoxicated when the bids were being considered, and they were informed and believed, ho was in the habit of getting intoxicated; that they were informed and believed he was without experience, unskilled and incompetent to construct said building or any part thereof; that he was not pecuniarily responsible and not prepared financially to carry on and complete the work ; that he attempted to intimidate the said board, and to purclnfso the influence of the prosecuting attorney who was advising with said board, and that, acting upon the information aforesaid, and in good faith, they awarded said contract to Lefller & Co., believing them, while not the lowest bidders, to be the loxoest and best bidders.
    These allegations of the answer are denied by the reply filed by the relator. This court heard the testimony of the witnesses offered by both sides, and the arguments of counsel.
    
      James M. Trigm and Marriott cG Hughes, for the plaintiff:
    The commissioners, having determined to award the contract, were bound to award it to the bidder offering to do the work and furnish the materials at the lowest price, and giving the requisite bond. The powers and duties of the board are prescribed by sections 794-799. of the Revised Statutes. Those sections divided bidders into two classes, viz: 1. Separate bidders. 2. Bidders for the whole job. Section 794 applies only to the first class. Section 799 applies only to the second class. Section 794 says: “ In all cases the contracts for the doing of the work belonging to each separate trade shall be awarded to the lowest and best separate bidder therefor . . . unless the same is let as a whole.” Section 799 says: “ But such contract shall be awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price.” State ex rel. Clough v. Commissioners of Shelby County, 36 Ohio St. 326, does not apply to the case at bar. Section 794 is. confined cxcusively to separate bidders, and a bidder, for the whole job nowhere comes within the terms of this section. lie is expressly excepted from its provisions. Ilis bid is governed by section 799, which “requires the contract to bo awarded to the person offering to perforin the labor and furnish the materials at the lowest price.”
    The statute has not undergone such a change since the act of April 27, 1869, (66 Ohio L. u2) as to give to the commissioners greater discretion in the letting of the contract in the ease at bar, than they had under said act, and consequently we claim that the cases of Boren v. Commissioners, and Farman v. Same, 21 Ohio St. 311, are applicable and dispose of this case.
    While there is a difference between sections 794 and 799 of the Revised Statutes, yet we think there is not a want of harmony between them when the two are carefully considered.
    
      W. B. Davis and C. II. Norris, for defendant:
    The statutes relating- to the letting of contracts for public buildings “ were enacted for the benefit of the public, and not for individual bidders, and should be executed with sole reference to the public interest” (State v. Commissioners, 36 Ohio St. 331), and cannot reasonably be construed to limit the commissioners to the exercise of less discretion then a prudent business man would exercise in his own affairs.
    From the very nature of the case, the exorcise of discretion, by the commissioners is necessarily implied in the duty to examine and award contracts; and the requirements of section 779 of the Revised Statutes to award the contract to the one offering to perform the labor and furnish materials at the lowest price is ex necessitate the same as the requirements of the act of 1831, to awai’d to the lowest bidder “if in the opinion of the commissioners he was a proper jierson to undertake such work or of section 791 Rev. Stats, to award to the lowest and best bidder. Boren v. Commissioners, 21 Ohio St. 311, qualified and explained ; 36 Ohio St. 330.
    Rut this court has already in State ex rel. v. Commissioners, 36 Ohio St. 326, construed sections 791 and 799 Rev. Stats, together as authorizing the commissioners to awai’d to the low- . est and best bidder, and the question as to the discretionary power of the commissioners can hardly be any longer regarded as an open question.
   Doyle, J.

We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and belief that ample discretion was vested in them to reject the bid of the relator, upon the information which they had. Wo are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to p'utthem in possession of the real facts, before deciding against awarding him the contract. Wo must assume that if the commissioners, when the charges were made against Mitchell, had given him a hearing, he would have satisfied them, as he has us, that there was, in fact, no reason why this contract should not be awarded to him.

We might grant a peremptory writ in this case without saying more, were it not for the claim urged, with great earnestness, that the commissioners are vested with complete discretion, in the matter of determining who is entitled to such a contract, and that such discretion, when exorcised in good faith, will not bo reviewed by the courts, oven though the information upon which they acted was false, or that they were themselves misled by it, or that it was wholly insufficient to justify their action, if they believed otherwise.

In the Darke county cases, 21 Ohio St. 311, this court, construing the act of April 27, 1869, held that:

“Where the commissioners proceed, in accordance with said act, to advertise for sealed proposals, to be filed within the time named, for the furnishing of specified labor and materials toward the erection of a court house, it is their duty to award the contract for such labor and materials to the person or persons who shall so offer the same at the lowest price, and give good and sufficient bond, to the acceptance of the commissioners, for the faithful performance of the contract; provided such price is not in excess of the preliminary.estimates required by the act.” Section 10 of the act of 1866, which is identical with section 799 R. S. requires the contract to be “ awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price, and give good and sufficient bond to the acceptance of the commissioners for the faithful performance of their contract,” &c. Construing this provision, Day, J., in the cases above referred to, says, “ The statute under which the parties were acting leaves but little discretionary power to be exercised by the commissioners, but they are vested with this power as to the sufficiency of the bond required of the bidder by the act, to entitle him to have the contract awarded to and made with him. Undoubtedly this discretion must be exercised in a reasonable and proper manner.” See also Beaver v. Trustees of Blind Asylum, 19 Ohio St. 97.

These adjudications are conclusive of the question under consideration, unless they have been overruled by subsequent decisions, or the law changed since they-were made, by legislative enactment.

The contention is, that after the act of 1869, and the decision-in the Darke county cases, the legislature vested in the commissioners the complete discretion contended for by the defendants herein. That the act of May 5, 1877 (74 Ohio L. 168) required the commissioners to let 'the contract to the lowest and lest bidder, and in terms repealed all laws and parts of laws then in force inconsistent with its provisions. That to determine who is the best bidder requires the exercise of a discretion by the commissioners, limited only by its exercise in good faith, in determining what is for the best interest of the public. That this law being in conflict with sec. 10 of the act of 1869 must, have the effect of repealing it. Being the latest expression of legislative will, it must govern.

The case of State v. Commissioners of Shelby Co., 36 Ohio St. 326, is relied upon to sustain this view.

Both of these laws were carried into the Revised Statutes, with some changes made in the act of 1877, but without change in the act of 1869. The act pf 1877, as amended, is now sec. 794 and sec. 10 of the act of 1869, is now sec. 799, R. S. Is. there any irreconcilable conflict between the two ? It is the duty of the court to so construe them as to give each full force and effect, if it can be done without violence to established rules of construction or the manifest legislative intent.

By the act of March 3, 1831 (2 S. & C. 1228), the commissioners were authorized to receive sealed proposals, or to sell the work at public auction to the lowest bidder; and the person making the best proposal or the lowest bid, was entitled to the contract, “ if in the opinion of the commissioners he is a proper person to undertake such work.” This act, with a number of others, was repealed by the act of April 27,1869, already mentioned, and the words, giving the commissioners discretion to determine whether the bidder was a fit person to undertake the work, as also the words “ best proposal ” were omitted.

This latter law, with the construction given in the Darke county cases, was in force when the act of 1877 was passed. It must bo remembered that up to the latter date there was no obligation imposed on the commissioners to advertise for separate bids from the different trades represented in the proposed improvement.

The act is entitled “ an act to regulate the letting of contracts for the doing of public work and the better protection of mechanicsIt provided that whenever any board, &c., is authorized to contract for the erection of any building, &c., and required by law to advertise for proposals therefor, it shall be the duty of such board, &c., “to require saeparte and distinct proposáis to be made for furnishing the materials, or doing the work, or both in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment or business , necessary to be used in making such public improvement; and in no case where more than one such trade or kind of mechanical labor, employment or business shall be required to furnish the materials for and do any such work, shall any bid for the whole of the job, or any greater portion thereof than is embraced in one kind of trade or mechanical labor, employment or business, be received or considered by any such board, officer or authority, in making the award of the contract or contracts for the same. And in all cases the contracts for doing the work belonging to each separate trade or kind of mechanical labor, employment or business, or the furnishing of the materials for the same, or' both, at the discretion of the said officer, board, or other authority, shall be awarded to the lowest and best, separate bidder therefor, &c.”

In the Revised Statutes, sec. 794, this statute was so changed as to require that no bid for the whole job shall be considered “ unless the, separate bids do not cover all the work and material required, or the bids for the whole, or for two or more kinds of work or material, are lower than the separate bids in the aggregate,” and requiring the contract to be let to the lowest and best separate bidder, “unless the same is let as a whole, or to bidders for more than one kind of work as aforesaid.” The separate bidder meant by this statute is a bidder for a separate part of the work belonging to a distinct trade or division of mechanical labor.

It is apparent that, under this section, read in connection with the other sections regulating the letting of the contract, to require the commissioners to let the contract to the lowest and best separate bidders, the aggregate of such separate bids must not exceed the estimated cost of the improvement; must cover all the work and materials required, and must not exceed in amount any bid which includes the whole of the work. In other words the work shall not be let to different parties, representing different trades, if the aggregate of their bids exceeds the amount of any bid which includes all of the different kinds of work to be done.

In this section 794 alone is found the words “ the lowest and best separate bidder.” Its purpose was to provide a means for bidding upon separate parts of the work, by contractors or tradesmen, without requiring them to undertake the entire job, as well as to prevent combinations to forestall competition. But the'legislature,- in the changes made in the law as enacted in section 794, wisely provided that this privilege to the separate tradesmen should not be at the expense of the public. To entitle them to separate contracts their bids must not exceed that of any bidder who includes the whole, must not exceed the estimate, and taken together must embrace'the whole work.

When the conditions exist which require the commissioners to let the contracts separately, they shall let them to the lowest and best separate bidders. But when those conditions do not exist, as in the case at bar, and the commissioners are required to let the contract for the entire job, to whom shall it be let? The law of 1869 which has been carried into the Revised Statutes without material change, and as construed in the Darke county cases sti-pra, requires the commissioners to let such, contract to the person offering to do the work at the lowest price and giving good and sufficient bond to the acceptance of the commissioners, &c.

We cannot hold that this provision is repealed by section 794. Each of these sections is in full force, and each is limited in its operation to the cases included in it when both are read together. It is no part of our duty to explain why the legis-, lature saw fit to vest in the board a greater discretion when awarding contracts to a number of persons, having no’responsibility for each other, than when awarding the same by a single contract to a person or persons responsible for the entire work.

• These' sections thus construed are reconciled and not in conflict. With this construction there is no conflict between the decisions in the Darke and Shelby county cases. ■ In the latter Case the bids were separate, for the iron work alone. The lowest bidder (to whom the contract was awarded), refused to execute it, and the commissioners readvertised. The relator, who was the only other bidder under the first notice, sought to compel the commissioners to award the contract to him. The court held that they were not bound to do so. What the result would have been, if the commissioners had awarded the contract to the relator in that case, in the first instance, and refused it to the lowest bidder, we need not determine.

We agree with the holding in that case, that in so far as sections 791 and 799 are different, the provisions of the former must govern; because they relate to special cases which form exceptions to the general provisions of the latter.

It is, in our judgment, quite evident that the legislature intended by the changes in the act of 1875, found in section 791, to make it harmonize with the other sections of the chapter enacted at the same time, and that there is no occasion to resort to the rule that the latest expression of the legislative will must govern, for the reason that the sections are made to harmonize by this single expression of the legislative will.

It may be added that whatever discretion is vested in the commissioners under section 791, (which we do not determine) it certainly is not greater than that vested in them under section 799 in respect to the acceptance of the bond. In the language of J udge Day, “ undoubtedly this discretion must be exercised in a reasonable and proper manner.” We have already said that, while the defendants supposed they had a right to reject this bid, under the circumstances, that discretion, even if we found that section 791 governed their action, was not exercised in a reasonable and proper manner.

■Peremptory writ allowed.  