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Dissenting Opinion.

should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it.” We have in that case an instance where. there were circumstances in mitigation, and not of wantonness, and yet a right of the injured party to compensatory damages, including all expenses, distinctly recognized.

Sexton v. Todd, supra, is on the same line. These two cases were reviewed and approved in Roberts v. Mason, 10 Ohio St., 277. Some language in the opinion of the court might be clearer and less confusing, but the syllabus, which is the law of the case, seems entirely plain. It is: “(1) In an action to recover damages for a tort (not merely a slander or libel) which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages; and this they may do although the defendant may have been punished criminally for the same wrong. (2) In such a case the jury mav, in their estimate of conipensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of the action."

The counsel fees are classed with compensatory damages and they form no part of the exemplary damages, and are not to be awarded as part of the

In Finney v. Smith, 31 Ohio St., 529, and cited in the majority opinion in this case, this court reviews the cases in Wright's Report already cited and Roberts v. Mason, and points out the difference between the syllabus and some language of the judge writing the opinion in Roberts v. Mason,

same.

Dissenting Opinion.

supra, which was an assault and battery case. The syllabus in Finney v. Smith, supra, is: "In an ac- . tion for libel, the jury may, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation, not amounting to a justification.” The questions presented to the court in that case called for just such a clear statement of the law, and while Boynton, J., was not willing to place his concurrence on that proposition, he does not controvert it, nor endeavor to show its weakness.

We have not space to quote from the case at greater length. The opinion refers to and approves other authorities which support the doctrine.

Therefore the trial court did not err in that part of the charge relating to compensatory damages. This, like Roberts v. Mason, was an assault and battery case, leading to ejectment from a car. It is a case sounding in tort, in which both compensatory and exemplary damages might be awarded, and it seems to me the trial judge correctly stated the law to the jury on that subject.

SPEAR, J., concurs in the dissenting opinion.

Statement of the Case.

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 contractsMeaning of lowest and best bidder-Discretion of board in rejecting any and all bidsMandamus 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 in

volved. 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 board 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,

Statement of the Case.

Ohio. 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 be entered into with

Statement of the Case.

relator 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.

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