assigned to him, and it is the duty of the county treasurer to make such assignment, mandamus lies for a refusal to perform this duty.1 $88. Where the power of granting licenses is conferred upon a particular officer, as an official duty, and he is required by law to grant certain licenses to persons tendering sufficient surety and paying certain fees, his only discretion in the matter being as to the sufficiency of the surety, the writ will go commanding him to grant a license on sufficient surety being given and the fees being paid.2 $89. Where a duty is imposed by law upon certain officers of levying and collecting certain money and paying it over to others, while it would seem to be incompetent to command such officers specifically by mandamus to bring an action for the money, the writ may go requiring and directing them to take the necessary legal measures for recovering payment.3 § 90. A commissioner for the selection of jurors under the laws of the state, being regarded as a ministerial and not a judicial officer, may be compelled by the writ to strike from a jury list the name of a person who is not liable to jury duty, the officer being regarded as devoid of all discretion in the matter.4 91. The duties of public officers entrusted with the letting of contracts for public works, are deserving of special notice in this connection, particularly with reference to that class of contracts which are required by the constitution or laws of the state to be let to the lowest bidder. In many of the states it is provided, either in the constitution, or by express legislation, that certain contracts for services to be rendered the public, such as public printing, the erection of public buildings, and other kindred works of public improvement, shall be let to the lowest responsible bidder giving adequate surety, the details of the advertising, awarding of contracts, amount of surety required, and other matters of like nature being generally regulated by express legislation. With 'State . Magill, 4 Kan. 415. * People v. Perry, 13 Barb. 206. 3 Queen v. Southampton, 1 Best & Smith, 5. 4 People v. Taylor, 45 Barb. 129. reference to this class of contracts and the duties of the officers entrusted with awarding them, the doctrine has been broadly asserted in Ohio, that where the bidder for the work has complied with all the requirements of the law, and his proposal is for the lowest price and is in conformity with law, he is entitled to the contract, and it is the imperative duty of the officers to award it accordingly, the duty being of a ministerial nature and hence subject to coercion by mandamus, even though the contract may have already been awarded to another bidder. But even in Ohio the decisions are far from harmonious, and the rule which they have attempted to establish has been so hedged about by limitations and conditions as to be of but little force. Thus, it has been held that the writ would not lie in behalf of the lowest bidder for public printing, to compel the commissioners to award him the contract for the printing, which had already been awarded by mistake to a higher bidder, where the party aggrieved had been guilty of a long and unexplained delay in seeking relief, and where he failed to show how much lower his bid was than that of the person receiving the contract. Nor will the jurisdiction be exercised in favor of one claiming to be the lowest bidder, who does not show a clear, legal right on his own part, and a plain dereliction of duty on the part of the officers. And where the law requires competing bidders for contracts for works of public improvements to give a good and sufficient bond, to the acceptance of the officers or commissioners entrusted with letting the contracts, and in the exercise of their discretionary powers such officers have rejected the bond, mandamus will not go to compel them to award the contract to the bidder whose bond they have rejected.4 3 92. The better doctrine, however, as to all cases of this nature, and one which has the support of an almost uniform 'Farman v. Commissioners of Darke Co. 21 Ohio St. 311. And the same doctrine has been contended for in New York, where no award had yet been made of the contract. See People v. Contracting Board, 46 Barb. 254. State v. Commissioners of Printing, 18 Ohio St. 386. 3 State v. Commissioners of Hamilton Co. 20 Ohio St. 425. Boren v. Commissioners of Darke Co. 21 Ohio St. 311. current of authority, is that the duties of officers entrusted with the letting of contracts for works of public improvement to the lowest bidder, are not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus.1 And the true theory of all statutes requiring the letting of such contracts to the lowest bidder, is that they are designed for the benefit and protection of the public, rather than for that of the bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus, after it has already been awarded to another. In all such cases, the spirit rather than 'State v. Board of Education of Fond du Lac, 24 Wis. 683; People . The Contracting Board, 27 N. Y. 378; Same . Same, 33 N. Y. 382; People. Croton Aqueduct Board, 26 Barb. 240; Same v. Same, 49 Barb. 259; People v. Fay, 3 Lansing, 398; Free Press Association . Nichols, 45 Vt. 7. State v. Board of Education of Fond du Lac, 24 Wis. 683. The principles on which relief by mandamus is denied in this class of cases are very clearly stated in the opinion of the court in this case by PAINE, J., as follows: "This was.. an application by the relators for a writ of mandamus, to compel the board of education of Fond du Lac to let to them a contract for the building of a school house in that city. The charter required the work to be let by contract to the lowest responsible bidder.' And it appears from the petition that the relators were the lowest bidders, and it must perhaps be assumed, on the papers on which the court below acted, that they were responsible bidders. It also appears from the petition, that the contract was in fact let to other parties, whose bid was higher. It is claimed on behalf of the board, that they had a discretion in determining what bidders were responsible, which the courts ought not to control. But, without deciding upon this point, we think the application was properly denied, for the reason that where proposals are made and bids put in, in the usual manner, in letting contracts for public works, the lowest bidder has no such fixed, absolute right, that he is entitled to a mandamus to compel the letting of the contract to him, after his bid has been in fact rejected, and the contract awarded to another. The statutory provision requiring the contract in such cases to be let to the lowest bidder is designed for the benefit and protection of the public, and not of the bidders. And whatever remedy the public may have, the lowest bidder, whose bid has been rejected, has no absolute right to a writ compelling the execution of a contract with him, after one has in fact been let to another. The writ of mandamus being a discretionary writ, the fact that the contract has the strict letter of the law requiring the work to be let to the lowest bidder should be kept in view. And where the right of the officers to enter into the contract is itself somewhat doubtful, mandamus will not lie. Nor does the mere issuing of proposals by officers entrusted with letting contracts, inviting bids for the performance of the work, without binding themselves to award the contract to the lowest bidder, create such an obligation on the part of the officers as to entitle the lowest bidder to the aid of a mandamus to obtain the contract. 3 Especially is it ground for refusing the writ, in such a case, that the officers show that they are without the necessary appropriation to meet the expenditure required, and that they have materially changed the design and character of the work, so that the public interests require that it should be again advertised and the contracts let under proposals framed in accordance with such alterations.4 § 93. It is important also to observe, in connection with the doctrine under discussion, that where public officers are entrusted by law with the duty of awarding contracts for work or services to be rendered the state, and are required by law to let the contract, after competition, to the person whose offer shall be most advantageous to the state, their authority in the matter is exhausted when they have made the award. They can not, therefore, be compelled by mandamus to examine other proposals and to enter into another contract for the same services, after they have already passed upon the matter and awarded the contract.5 § 94. The authorities referred to in the notes to the preceding sections, leave no room for doubt as to the settled rule that the lowest bidder acquires no such rights by making his bid as to entitle him to the writ of mandamus, before the con actually been awarded to another is sufficient to induce the court to decline to interfere to further complicate the matter, even though they might otherwise have done so. The People v. Contracting Board, 27 N. Y. 378. See also People v. Croton Aqueduct Board, 49 Barb. 259." 1 People v. Fay, 3 Lansing, 398. 2 Id. 3 People v. Croton Aqueduct Board, 49 Barb. 259. 4 Id. Free Press Association v. Nichols, 45 Vt. 7. 1 tract has actually been awarded him. The powers conferred upon the boards or officers authorized to contract with the lowest bidder, necessarily involving the exercise of discretion, the general principle denying relief by mandamus to control the discretionary powers of public officers applies, and the courts refuse to interfere. Upon similar principles the writ will be 'See cases cited supra, and People. Croton Aqueduct Board, 26 Barb. 240. People v. The Contracting Board, 27 N. Y. 378. Mr. Justice EмOTT, delivering the opinion, says: "The constitution of this state (article 7, $3,) as amended in 1854, declares that 'all contracts for work or materials on any canal shall be made with the person who shall offer to do or provide the same at the lowest price, with adequate security for their performance.' The act of 1857 (vol. 1, p. 214,) provides that the contracting board' shall have power, and it shall be their duty to let by contract, under such regulations as said board shall prescribe, to the lowest bidder or bidders, who will give adequate security for the performance of the contract,' the repairs of any completed section of the canal. Under this law, the contracting board advertised for proposals to keep the Cayuga and Seneca canal in repair for four years and a half. This notice indicated the form and character of the security, which the board would consider adequate, that is, it stated that every proposal must be accompanied by a certificate of deposit, in some bank in good credit, that four thousand dollars in cash had been deposited therein to the credit of the auditor, which would be retained as security for the performance of the contract. The relator made a proposal which was somewhat lower in price than that of any other person, but it was not accepted. A contract was made with one Case, who seems to have been the next highest bidder. The relator delivered with his proposal a certificate that he had deposited in the Salt Springs Bank of Syracuse four thousand dollars, payable to the order of N. S. Benton, auditor, but the certificate did not state in so many words that he had deposited such amount in cash. Case, whose bid was accepted, delivered a similar certificate, containing, however, the words 'in cash.' It is to be inferred, although it is not distinctly stated, that this difference in the form or phraseology of the certificate was the reason assigned for rejecting the relator's bid, and accepting a higher one. I confess I should be unable to justify such a decision, and I can hardly suppose that it was the true and only ground of the action of the board. Yet I think the supreme court ought not to have compelled the board, by mandamus, to reverse their action, or to make a contract with the rela tor, after they had already made another contract with another person. The powers conferred upon the board necessarily involved and implied an exercise of discretion, although it seems exceedingly clear what decision their duty required them to make in this case. But they are to determine who is the |