The objection as to failure of notice to property owners is not made good in any respect. The evidence shows that full and complete and legal notice was given in each instance when notice was required.

Without prolonging this opinion by going into detail and without amplification in this regard, we find in neither of the five reasons set forth in the petition for reducing the amount chargeable to each lot, cause for relief in that behalf. And, altogether, in our opinion, no case is made to grant the injunction prayed in the petition.

It does not appear, however, that the improvement as to some of the plaintiffs' property abutting on the street is properly completed. Notably as to the property of plaintiffs Benjamin Burden, Grant Taylor and Jacob Culp, and perhaps others to a less extent. Surely without denial as to the lots of the plaintiffs I have named, the improvement ends at the east line of the Burden lot, and is so left at the end that the water from the intersecting street can not reach the paved street and so pass off, but is dammed up there by the insufficient grade or approach to the pavement, making an unsightly and unhealthy mudhole. Grant Taylor's lot drains to a street running along the side of his lot, and intersecting the improved street. The water draining from his lot reaches the side street, and because of the height of the surface of the improved street the water can not flow off to the side street, and so is left to stagnate, and, from the evidence, the same is true of the lot of Jacob Culp, and perhaps of others.

This condition was not intended to result from the improvement, and must be remedied, not only as to the plaintiffs whom I have specifically named, but as to the others, and wherever it exists, if it exists elsewhere. The parties are entitled to have the street so constructed and the intersecting streets so fixed and graded as to overcome the trouble of which they complain. And it seems this may be accomplished without difficulty, and must be so done without further expense to them, as well as those I have named as those I have not named, if conditions demand it. As to Burden, Taylor and Culp, the collection of the amount with which their lots stand charged will be restrained until a showing is made to this court that the defect of which I speak

Jeffrey, Mayor, v. State, ex rel Butler.

[Vol. IV, N. S.

is made right. And as to them the case is continued until the next term of this court in order that opportunity may be given the defendant to show that it has complied with this condition. The injunction is refused as to the other plaintiffs, with the admonition, however, to defendant that this court will hold defendant to the obligation to remedy any condition of the character described which may exist as to each and any of said other plaintiffs.

The costs, because of the defect in the advertisement for bids, and the reason which said defect afforded for a possible remedy, are adjudged against the defendant, and the petition as to the plaintiffs other than Burden, Taylor and Culp is dismissed and the injunction dissolved.

Judgment for costs against defendant. Execution is awarded and the case is remanded for execution.

W. E. Detweiler and F. M. Horn, for plaintiffs.
Roy E. Layton, for defendants.

THE RIGHT OF FRANCHISE UNDER THE BRANNOCK LAW.

[Circuit Court of Franklin County.]

ROBERT H. JEFFREY, MAYOR, V. THE STATE OF OHIO, EX REL JAMES M. BUTLER, CITY SOLICITOR.*

Decided, July 1, 1904.

Brannock Law-Not Unconstitutional Because of a Denial to Any of the Right of Franchise-Courts will Presume that a True Construction of the Law will be Adopted.

The Brannock Law is not rendered invalid by reason of the possibility that certain persons may be disfranchised at an election thereunder by reason of the construction which may be given to Section 2926 of the election law. Courts will presume that the true construction of the statute will be adopted and the elections so conducted as to give every elector an opportunity to register and vote.

DUSTIN, J.; SULLIVAN, J., and WILSON, J., concur.

We concur with the views of the Common Pleas Court of

*Affirming City of Columbus v. Jeffrey, Mayor, et al, 2 N. P.-N.

S., 85.

Franklin County as to all the questions raised in the hearing before that court.

One new question is presented to this court. It is urged on behalf of the plaintiff in error that the Brannock Law is unconstitutional, because in contravention of Section 1, Article V of the Constitution, which provides that every citizen having the qualifications of an elector shall be "entitled to vote at all elections."

In the provision for elections under the Brannock Law, it is stipulated that "in municipal corporations having registration, only registered voters shall be entitled to vote."

Now it is claimed that there is no provision in the Brannock Law whereby an elector who should move into the residence district wherein a Brannock Law election is about to be held, and become a resident thereof, after the regular days of registration for such election, could be registered and vote, because there is no provision for his obtaining a transfer from his former residence, the election officers therein not being necessarily in session.

We think this point is not well taken, because Section 2926v of the election law makes full provision for such contingencies.

It is suggested in argument that, while Section 2926v may be so construed as to afford every facility for the registration of removals, the secretary of state and the deputy state supervisors have put another construction upon the same, and will issue orders accordingly, thus depriving a removing elector of the right to vote.

This is denied. But, whatever the fact, this court must presume that the election officials will adopt the true construction of the statute and will so conduct the elections as to give every elector an opportunity to register and vote.

The judgment of the common pleas court granting the writ of mandamus upon the mayor of the city of Columbus as prayed for will therefore be affirmed.

James M. Butler, on behalf of the mayor.

Thomas M. Clarke, L. D. Lilley and W. B. Wheeler, for the Brannock Law.

Gumble & Gumble and James Caren, contra.

City of Akron v. France.

[Vol. IV, N. S.

PUBLIC CONTRACTS NOT AWARDED TO THE LOWEST

BIDDERS.

[Circuit Court of Summit County.]

CITY OF AKRON V. OSCAR B. FRANCE ET AL.

Decided, April Term, 1902.

Contracts for Public Work—Bids-Remedy of Lowest Bidder-Where in the Discretion of Public Officials Contract is Awarded to Lowest Responsible Bidder-Lowest Bidder Not Entitled to Damages.

1. Where bids have been invited under Section 794, directing the proper officials in making contracts for public improvements, to award the contract to the lowest responsible bidder, it is within the discretion of such officials to reject any or all bids or to award the contract to one whose bid is not the lowest in price.

2. Mandamus will not lie to compel the award of such a contract to the lowest bidder; the remedy is to enjoin the carrying forward of the work, set aside the contract and to refer the matter back to the officials awarding the contract for further action in accordance with the statute.

3. An action will not lie on the part of the lowest bidder for work thus awarded, for recovery of the amount which said bidder claims would equal his profits had the contract been awarded to him.

HALE, J.; CALDWELL, J., and MARVIN, J., concur.

Heard on error.

The city of Akron, in June, 1898, had taken the necessary steps for improving a portion of Wooster avenue. Through its proper officials it advertised for bids for doing the work. In response to that advertisement there were two bids filed with the city, the plaintiffs proposing to furnish all the material and to do the work for $19,093.83. McCourt proposed to do the work for $19,512.21. After these bids were received, the plaintiffs, who were the lowest bidders, ascertained that there was danger of losing the contract, and brought an action in the court of common pleas setting up the proper facts and asked that the city officials be enjoined from awarding this contract to McCourt and be compelled to enter into a contract with the plaintiffs for the doing of the work. The officials were too quick for the officers serving the papers, and before the papers

were served entered into a contract with McCourt accepting his offer.

Thereupon the petition was amended and a supplemental and amended petition filed in which allegations are made that the commissioners of the city fraudulently entered into this contract with McCourt to defeat the plaintiffs in their rights, and alleging the facts occurring after the first petition was filed. For some reason trial was delayed for some time, and when the case was heard on the issues made, the court found the fact to be that the plaintiffs were the lowest bidders for the doing of this work and should have been awarded the contract. The court also found that the work had been done by McCourt, that the whole contract was completed, that it had been accepted by the city and paid for, and retained the case for the purpose of assessing damages to the plaintiffs by reason of the plaintiffs having been denied the contract.

The case was continued, and the plaintiffs filed a second supplemental petition in which they allege that the contract had already been completed by McCourt, had been accepted by the city and McCourt paid for it, and there was nothing to be done so far as he was concerned; and asking for damages against the city in the sum of $5,150; $5,000 for the profits that would have been made by the plaintiffs if they had been awarded the contract and allowed to complete it and $150 for some other items. The case then came on for further hearing, issues having been made by answer and reply, and was submitted to the jury for the assessment of damages, the court holding that the court, on the first hearing, had determined the rights of parties.

The precise question here involved has not been, as far as we are aware, adjudicated by the Supreme Court. There are three cases that may have some bearing on the questions here involved: First, the case against the commissioners of Darke county, a mandamus to compel the awarding of a contract for the building of a court house, was sustained by the Supreme Court, but under a statute that required the letting of a contract to the person proposing to build the structure for the lowest price, and the court held that meant a mere matter of mathematics, no discretion lodged with the commissioners, and hence a mandamus