#### The State, ex rel., *v.*The Board of Public Service of Columbus.

*Public contracts for street improvements*— Section *1536-679, Revised Statutes*— Method *of letting contracts*— Meaning *of lowest and best bidder*— Discretion *of board in rejecting any and all*bids— *Mandamus will not apply, when.*

1. By section 1536-679, Revised Statutes, pertaining to the letting of contracts for street improvements, discretion is given a board of public service to reject any and all bids, and this discretion will not be interfered with by mandamus where such discretion has not been abused and no vested right of any bidder is involved.

2. Where, after proper advertisement .for bids, and bids have been received, a resolution has been duly adopted by such board finding a bidder therein named to be the lowest and best bidder and directing the clerk to notify the bidder of that fact, but before such notice has been given the resolution is, for reasons by the board deemed sufficient, rescinded and an order made to again advertise for bids, the bid' of such bidder being thereby rejected, such rescission and an order will not be treated as an abuse of discretion, and the board cannot in such case be required by mandamus to enter into a written contract with such bidder authorizing him to enter upon the work of the improve- ' ment.

3. The proceedings of the hoard of public service in the advertising for bids and the adoption of a resolution defining who is the lowest and best bidder is not the making of a contract but is merely preliminary to the making of the written contract provided for by the statute, and such contract is the only one the board is by the statute authorized to make.

(No. 11208

Decided November 30, 1909.)

Error to the Circuit Court of Franklin county.

The relator in the court below is The Cleveland Trinidad Paving- Company. The defendant is the Board of Public Service of the City of Columbus, *219Ohio. The relator’s action was in mandamus to compel the execution by defendant of a paving contract with relator. In both courts below the case was determined upon a demurrer to the petition, which being sustained and relator not desiring to further plead, judgment was entered for defendant.

In substance the averments of the petition are: On August 31, 1906, the council of the city of Columbus adopted a resolution declaring the necessity of improving Third avenue from High street to Dennison avenue, and on October 2, 1906, said council passed an ordinance determining to proceed with the improvement and directing the Board of Public Service to advertise for bids and enter into a contract for the grading and paving of Third avenue with the lowest and best bidder therefor according to law. The Board duly advertised for bids. The advertisement recited, among other things, that each bid should contain the full name of every person interested in the same, and should be accompanied by a certified bank check for five hundred dollars, or a bond for like amount conditioned that if the bid should be accepted the contract should be entered into within five days after notification of acceptance from the board. On January 29, 1907, relator duly complied with all the requirements of the advertisement. Relator was the lowest and best bidder for the improvement, and said Board, on February 16, 1907, upon canvassing the bids, by resolution duly adopted, found and decided that the bid of relator was the lowest and best bid, and ordered that a contract he entered into with *220relator for the improvement on relator giving a satisfactory bond in an amount required within five days from that date, and the clerk was ordered to transmit a copy of the resolution to relator, but defendant did not cause said clerk to transmit a copy of the resolution to relator and did not give to relator any notice, that relator’s bid was accepted, and, on April 10, 1907, defendant, by resolution then adopted, wrongfully and unlawfully set aside said award of said contract with relator, and ordered that the work be again advertised for bids. Defendant did not at any time notify relator that relator’s bid had been accepted and that relator had been awarded the contract, and relator had no information that said contract had been awarded' to it until shortly prior to said date; whereupon relator demanded that defendant execute a contract with relator, offering to give a proper bond to the satisfaction of defendant, and to enter into such contract. But defendant refused and still refuses to perform its part of said contract, and to perform its duty in the premises according to law, and will not permit relator to make said improvement, although relator has been at all times and now is, ready, willing and able to perform its part of said contract, and herewith' tenders its bond in the proper sum therefor.

The prayer is that a writ of mandamus issue commanding defendant to enter into a contract with relator for the improvement, and to permit relator to enter. upon the performance of said contract.

*221*Messrs. Marriott, Belcher & Connor,*for plaintiff in error.

*Mr. Geo. S. Marshall,*city solicitor; *Mr. E. L. Weinland,*and *Mr. F. R. Hoover,*for defendant in error.

Spear, J.

The record presents a phase of the inquiry respecting the duty of municipal officers in the letting of contracts for the making of street improvements, and the rights of bidders for the opportunity to enter into contracts with the municipality for that purpose, which seems not to have been present in any reported case. A single question arises. It is: Can the municipal authorities, after determining to award a contract to one who has been, by resolution duly adopted, found to be the lowest and best bidder, lawfully rescind such action and refuse to notify such bidder of its resolution and to enter into a contract with him, the bidder having in all respects complied with the requirement of the advertisement for bids, and having shown that he is able, willing and ready upon his part to enter into such contract ?

The question would seem to be answered by ,a consideration of section 1536-679, Revised Statutes, (section 143, Municipal Code) which, among other things, provides that the directors of public service may make any contract for any work under the supervision of that department not involving more than five hundred dollars, but that when such expenditure will exceed that sum the expenditure shall first be authorized and directed *222by ordinance of council. Then follow directions as to advertising for bids, specifications, of what the bid shall contain, for check or bond to accompany the same, for the opening of bids, that the board shall make a written contract with the lowest and best bidder, but that the board may reject any and all bids, and that where there is reason to believe there, is collusion or combination among bidders the bids of those concerned therein shall be rejected.

The contention of plaintiff in error necessarily rests upon the claim, expressed in general terms in the petition, that the duly authorized offer' of the Board tendered to bidders a proposition which when duly accepted by the relator, as it was by its bid and check, such bid being the lowest and relator being the best bidder, became a contract between' the relator and the city; that a vested right was thereby conferred upon relator and it therefore became the plain mandatory duty of defendant to enter into the written contract provided for by the statute. There is apparent plausibility in this claim, but is it sound? It seems to us not. The weakness, fatal, as we think, lies in the assumption that the Board had done all that the statute requires in order to bind it, that its resolution implies an acceptance of the Company’s offer, and that there followed an acceptance by the Company of the Board’s resolution and implied offer. Neither condition existed. The act of the Board lacked one essential element contemplated by the statute and required by the advertisement to be done by the Board, viz.: notification to relator of the passage of the resolution finding *223relator to be the lowest and best bidder. To fairly make the question which the counsel argue the element of notification should be present. At least until notification had been made it could not be claimed with reason that there had been any acceptance by the Board of the Company’s proposition. In no just sense can it be said that the resolution was conclusive or binding on the Board. It was in effect a mere mental assent on the part of the Board unexpressed by any act which would conclude the negotiation or bind the party. Nor was there an acceptance by the Company, the attempt to do so having been made after the Board had rescinded the only action taken which it is claimed formed the basis of a contract. So there was in fact no tender. One cannot accept that which has not been tendered, and cannot bind another by such attempted acceptance. Unless, therefore, the act of making the bid and putting in the check amounted to an acceptance there clearly was no acceptance shown on the part of the Company and the bid and check cannot be treated as an acceptance because all this-was tentative and could have no potential effect until the Board had subsequently taken action in conformity with the statute. Necessarily, therefore, there could have been no contract. To accept a contract is to admit it and agree to it; to accede to it, to assent to it; the ordinary meaning embodies assent and agreement. 1 Am. & Eng. Ency. of Law & Prac., 224. And there can be no contract without such acceptance, for as Pothier says: *“A*contract includes a concurrence, of intention in two parties one of whom promises. something to the other, who on his part, *224accepts such promise.” So it follows that as there was no mutual promise, no meeting <3f the minds upon the same terms at the same time, there could be no contract. Whatever might have been the legal right of relator to insist upon a written contract had such notice been given we need not in this connection discuss, for no such situation has arisen.

But, aside from the foregoing, a further view of the statute would seem to conclusively determine the rights of the parties. Running all through the legislation is a plainly implied if not expressed purpose to clothe the Board of Public Service with a wide discretion in dealing with the making of contracts for street improvements, the various precautionary provisions being intended to safeguard the public in its dealing with contractors. The Board may reject any and all bids. If there be reason to believe there is collusion or combination among bidders, the bids of those concerned therein *shall*be rejected. True, the language is that the board shall make a written contract with the lowest and best bidder, (that is, no contract shall be made with any but the lowest and best bidder,) but the board is to determine who of all the bidders is the lowest and best, and no limit is placed respecting the time when the determination shall be made, nor is there any requirement refusing to the board the power, úsually accorded to all municipal bodies, to rescind their action in a proper case. In the absence of such provision the proposition is a fair one that' the usual' rule prevails. That rule, well settled by numerous adjudications, is to the *225effect that the action of such bodies respecting legislative or administrative matters is not always conclusive and beyond recall, but that they are possessed of inherent power to reconsider their action in matters of that nature, and adopt if need be the opposite course in all cases where no vested right of others has intervened, the power to thus act being a continuing power. The powers involved in this inquiry are administrative powers, and necessarily they must involve the right to reconsider action theretofore taken, and, in the absence of a showing that fraudulent intent existed to the injury of the complaining party, courts will not interfere. In this case, under the statute cited, it is quite clear that the real substantial object to be attained is the making of the written contract; it is the only contract authorized by the statute, and all that precedes is but preliminary to the efficient object, viz.: the written contract. Until that is executed the city is not bound. In the present case the Board was authorized to bind the city by the written contract specified in the statute, but was wholly unauthorized to bind the city by any other contract.

As conclusion, we regard the rule, entirely settled as we think, that where authority is given by statute to a board to let a contract to the lowest and best bidder, discretion is thus conferred and courts will not undertake tó control such discretion by mandamus applied to this case. *Ex parte Black,*1 Ohio St., 30; *The State*v. *Commissioners,*36 Ohio St., 326; *The State*v. *Commissioners,*63 Ohio St., 440. Among many *226authorities cited by the vigilant counsel for defendant in error. special attention is directed to the following: *Coppin*v. *Herman,*6 N. P., 452; *Ross*v. *Stackhouse,*114 Ind., 200; *Red*v. *Augusta,*25 Ga., 386; *Water Commrs.*v. *Brown, 32*N. J. L., 504; *McClain*v. *McKisson,*15 C. C., 517; *Braman*v. *Elyria,*5 C. C. (N. S.), 387, aff. in 73 Ohio St., 346; *Yaryan*v. *Toledo,*8 C. C. (N. S.), 1; Page on Contracts, sections 43, 54; *Edge Moor Bridge Wks.*v. *Bristol,*170 Mass., 528; *Benton*v. *Springfield Y. M. C. A., Id.,*534; *Dunham*v. *City of Boston,*12 Allen, 375; *People’s Railroad*v. *Memphis Railroad,*10 Wall., 38; *Stoddart*v. *Galman, 22*Vt., 568; *Cox*v. *Mount*Tabor, 41 Vt., 28; *Estey*v. *Starr,*56 Vt., 690; *Capital Ptg. Co.*v. *Hoey,*124 N. C., 767.

It may be added that persons dealing with municipal corporations must at their peril take notice of all grants of power and of all limitations of authority on the part of municipal agents, and that in the present case the relator must be held to have had notice of the scope of the powers of the Board and the prescribed manner of their exercise.

The judgment of the circuit court will be

*Affirmed.*

Crew, C. J., Summers, Davis, Si-iauck and Price, JJ., concur.