
    The State of Ohio, on Relation of the Xenia Manufacturing Company, v. The Board of Commissioners of Licking County. The Same, on Relation of P. B. Carpenter & Co. v. The Same.
    1 The lowest bidder at the letting of a contract for the erection of public buildings, under the act of April 27, 1869 (66 Ohio Laws 52), in order to secure a right to the contract, must act promptly in giving the bond required by the tenth section of the statute.
    2. Upon the failure of the lowest bidder, at such letting, to give the required bond, the next lowest bidder, who gives such bond, is entitled to an award of the contract.
    3. Upon such failure of the lowest bidder, the next lowest, in order to secure a right to the contract, must be ready to give his bond within a reasonable time from and after the default of the former.
    
      In mandamus.
    
    The board of commissioners of Licking county, under authority of the act of April 27,1869 (66 Ohio L. 52), and the amendments thereof, having determined to erect a new court-house for the use of the county, advertised for sealed proposals for the performance of the work and the furnishing of materials, etc.
    On Tuesday, April 25, 1876, at Newark, the time and place nuned in the advertisement, the sealed proposals (of which there were nineteen) were opened. The Xenia Manufacturing Company’s proposal, to wit, $153,833, was the lowest offer. The next lowest offer, to wit, $156,200, was made by P. B. Carpenter & Co. After the rating of the proposals had transpired, an arrangement was made between the commissioners and the Xenia Manufacturing Company, whereby Friday, the 28th of the month, was fixed for the completion of the contract.
    On the next day, April 26th, drafts of a bond and contract to be executed by the company, were sent by the commissioners by mail to the company at Xenia, Ohio, where the office of the corporation was located. On Friday, the commissioners met, but not hearing from the company, adjourned to the 2d day of May. On the 2d of May, the commissioners sent a committee to Xenia to demand the delivery of a bond and the execution of the contract by the company forthwith, and upon its failure to comply to declare an end to the negotiations. On the 3d of May, the committee demanded the bond, but the company was unable, at that time, to tender it with sufficient sureties. Upon same day, after report from its committee, the board of commissioners declared the offer of the Xenia Manufacturing Company forfeited by reason of its neglect to execute its bond, as required by law, and ordered advertisements for a reletting of the contract.
    
      On the next day, May 4th, the Xenia Manufacturing ■Company tendered to certain of the commissioners (the board not being in session) a bond in due form and sufficiently secured, and demanded that the contract should be awarded to it. On the 9th of the same month, the board of commissioners being in session, there was a like tender and demand made by the company, which were refused by the board on the ground that the company had, by its negligence, forfeited its right to the contract.
    On the 13th of May, P. B. Carpenter & Co. notified the commissioners that they were ready and willing to execute their bond and enter into contract for the building of the court-house, and insisted upon their light to have the contract awarded to them. But the commissioners refused to negotiate with Carpenter & Co. in the premises.
    Upon the application of the Xenia Manufacturing Company and P. B. Carpenter & Co., respectively, alternative writs of mandamus have been issued against the board of commissioners to compel the awarding of a contract for said work, and the same being answered, now stand for decision upon the facts above stated.
    
      Little § Shearer, for plaintiff.
    
      Gibson Atherton, for respondents.
    
      S. Burke, for Carpenter.
   By the Court.

Neither of the above named relators is ■entitled to a peremptory writ of mandamus.

Section 10 of the act of April 27, 1869 (66 Ohio 1. 52), provides “ that it shall be competent for the said commissioners, if from any cause they fail to make the contract or contracts, as above provided, on the day named in the notice, as in this act required, to continue from day to day until such contract or contracts be made; provided that ■such 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, to tbe acceptance of tbe commissioners, for the faithful performance of their contract,” etc.

Although the statute does not require the bond to accompany the proposal, or fix the time within which it must be given, yet it was the evident intention of the legislature' that promptness should be required of the lowest bidder in making a tender of his bond. The contract can not be-awarded until the bond is given. And it is only in case the commissioners fail, from some cause, to make the contract on the day named in the notice (for proposals), that it is made competent for them to continue (in session) from day to day until the contract be made. Again, if the lowest bidder fail to give the required bond, the next lowest, who gives a bond, is entitled to have the contract awarded to him. These provisions suggest promptness of action on the part of bidders in complying with the conditions of the statute.

It is claimed, on behalf of the relators, that a reasonable time should be allowed bidders for the preparation and delivery of the bond. In a general sense, this claim is well founded; but, under the provisions of this statute, a reasonable time is such as prompt men would ordinarily require for the performance of such a duty.

As to the Xenia Manufacturing Company, the time agreed upon between it' and the commissioners—to wit, three days—was certainly all the time that could have been reasonably claimed by it. Under the circumstances of this case, the commissioners would have been justified in passing its offer at the expiration of that period. The additional time given to it was ex gratia. And this was so, whether the delay of the company resulted from negligence- or inability on its part to comply with its engagement.

As to Carpenter & Co., while we do not hold them derelict in neglecting to tender a bond in anticipation of the failure of the Xenia Company to comply with the statute, we are well content in holding that time commenced running against them as soon as the Xenia Company made default.- To say the least, Carpenter & Co. should have-shown themselves ready and willing to comply with the statute, by giving bond within a reasonable time after the expiration of the period allowed to the Xenia Company. Delay on their part to the 13th of May was fatal to their rights. It was not the duty of the commissioners 'to demand a bond from them; it was their duty to tender it within a reasonable time.

Peremptory writs refused.  