
    The American Clock Company v. The Commissioners of Licking County.
    1. Under section 2 of the act relating to the duties of county commissioners (S. & S. 86), where proposals are to be received for furnishing goods to the county, the description of the goods must be determined by the commissioners, and specified in the notice inviting proposals.
    2. Where the.commissioners invited proposals for furnishing a clock, which, as described in the notice, was “ to be similar to or identical with a No. 4 Howard tower clock, and to be at least equal thereto in.value and durability:” Held, that in order to comply with the notice, the clock proposed, if not identical with, must be similar in its mechanical construction to a No. 4 Howard tower clock.
    3. If the notice inviting proposals is defective in excluding fair competition, the commissioners can not be required to award the contract to any of the bidders.
    4. To entitle a bidder to a mandamus, notice must have been given in conformity to the statute, and his bid must conform to the notice. Where the notice is insufficient, the remedy is not by mandamus.
    
    Application for a writ of mandamus.
    
      The commissioners of Licking county, being desirous of obtaining a clock for the new-court house of the county,, caused the following advertisement to be published inviting bids:
    “Proposals for a tower clock. Proposals will be received at the office of the county auditor of Licking county, Ohio, up to noon of the 10th day of January, A. D. 1878, for furnishing for the use of said county, a tower clock for the npw court-house, the said clock to be similar1 to, or identical with a No. four Howard tower clock,, and to be at least equal thereto in value and durability, and the hands of a dial in the court-room are to be moved by an electrical attachment connected with said clock. The successful bidder will be required to enter into a contract to furnish said clock by the 1st day of August, 1878, and to-give bond, with security to be approved by the county commissioners, that said clock will be delivered according to the-terms of said contract.
    “By order of the county commissioners.
    “ C. S. Brady, County Auditor.”
    
    Three parties submitted bids under this advertisement, viz: E. Howard & Co., Charles Easaldt, and the American Clock Company.
    Howard & Co. offered to furnish a number four Howard; tower clock, with four dials of glass and iron, for $8,000.
    Easaldt made three offers:
    1. His Centennial tower clock, which is still on exhibition at- the permanent exhibition at Philadelphia, for $2,400.
    2. Another clock like the first, except in size, for $1,700.
    3. Also a third, of less dimensions than the first, for $2,000.
    The American Clock Company made four offers :
    Their number 14 clock, with four dials of French plate-glass, $2,100.
    2. A number 14 clock, with wooden dials, at $1,600.
    3. Their number 13 clock, with four dials of French plate.glass, $1,600.
    4. Number 13 clock, with wooden dials, $1,000.
    
      The proposals of the parties respectively contain a more particular description of the clocks they respectively propose to furnish.
    The application states “ that a number 4 Howard tower clock has no distinct or different identity or meaning, value or quality, from any other tower clock of equal size, power, durability, and workmanship, and derives the name of Howard tower clock solely from the fact that it is manufactured by one Howard, or sold as his clock, and as designating the owner thereof.”
    The application also states that the clock No. 13 mentioned in the bid of the American Clock Company, “is fully equal to the clock called the Howard tower clock No. 4, and to the clocks mentioned in the said bids or proposals of said Charles Easaldt, in quality of material used in its construction, in the arrangement of its works, in its workmanship, in its power, durability, accuracy in the keeping of time, and in all other respects.”
    That the clock No. 14 mentioned in the bid of the American Clock Companjq “is superior in size and power, and in all other respects fully equal to the said clock known as Howard’s tower clock No. 4, and to the clocks mentioned in the said bid of said Easaldt; while the circumstance that the said American Clock Company, in their bid, propose to include the best plate glass illuminating dials, make the price at which it is offered lower than the bid of said Easaldt.”
    The prayer is that a writ of mandamus may issue to the board of commissioners, commanding them to accept the said bid and proposal of the American Clock Company, and to make with them a contract for the purchase and delivery of said clock.
    
      J. Buckingham and Charles Follett, for plaintiff.
    
      Q. Atherton, for defendants.
   "White, C. J".

The writ in this case,must be denied, unless upon the facts shown in the application the law makes it the duty of the commissioners to award the contract to the American Clock Company.

The case arises under the act of March 9, 1866. S. & S. 86.

The statute requires the commissioners before they shall make any contract for the outlay of money, on behalf of the county, exceeding five hundred dollars, to cause notice to be given in one or more newspapers of general circulation in the county, that proposals will be received for the performance of the work, or for furnishing the goods, wares, merchandise, or materials; and it is made the duty of the commissioners to make the contract with the lowest responsible bidder, upon his giving the required security that the work will be faithfully performed, and the goods, wares, merchandise, or materials will be honestly delivered according to contract.

It is also provided that all contracts or purchases entered into in contravention of the provisions of the section, shall, as against the county, be null and void.

The character or description of the goods to be furnished must be determined by the commissioners; and this description must be specified in the notice inviting proposals.

The goods required in the present instance is thus described : “ The said clock to be similar to, or identical with a No. 4 Howard tower clock, and to be at least equal thereto in value and durability.”

Now we understand this notice to require a clock, where it is not identical with, to be similar in its mechanical construction to a number four Howard tower clock, and in addition to be at least equal thereto in value and durability.

It is averred that the clock offered by the American Clock Company, as well as that offered by Fasaldt, is equal in value and durability to the, Howard clock; but we find it nowhere stated, that either of them is similar to it in mechanical construction.

It is stated that a No. 4 Howard tower clock has no different identity, value, or quality from any other tower clock of equal size, power, durability, and workmanship. This may be true in a general sense; and yet the clocks in mechanical construction may be dissimilar.

This statement is too indefinite to be regarded as showing dereliction of duty on the part of the commissioners, in not awarding the contract to the American Clock Company.

It is claimed that the notice as above construed excludes competition, and is therefore contrary to the intent of the statute.

Assuming this to be correct for the purposes of the present case, still it does not aid the relators. If the notice is defective, it constitutes good ground why the commissioners should make no award under the notice, but it is no ground for compelling them to make it to any of the bidders.

To entitle the relators to a mandamus, notice must have been given in conformity to the-statute, and their bid must conform to the notice. Where there is no notice, or the notice is insufficient, the remedy is not by mandamus.

Writ refused.  