(dissenting):
As this case involves the construction of an important statute and definition of the functions of the writ of mandamus, and *498the views and conclusions, expressed by my associates, and their application of the law, are not in accord with what I deem the best considered cases, I am compelled to dissent. The determination of the responsibility of the bidder undoubtedly involves the exercise of discretion, and, if that element 'were in the case, it would denjr remedy by mmdmims, provided the respondents had exercised their discretion. But no such question is involved. The return virtually admits the award was made as it was, because Guthrie appeared to be the lowest bidder for the binding. The alternative writ unequivocally asserts the responsibility of Butler in all respects and the return does not deny it. By a mere oversight, failure to scrutinize the figures in the Guthrie bid and test the correctness, of the calculation, the relator was refused an award to which he was clearly entitled. After the discovery of the mistake, the commissioners thought they had no power to correct it, and their opinion and judgment as to that question may be correct. There is no suggestion of intentional 'wrong on their part, and I am satisfied none existed on the part of any of them.
There are a few cases in which it has been held that statutes like this one were made for the benefit of the public and, therefore, vest irreviewable discretion in the officers, charged with their administration. I agree that they are intended to sub-serve the public interest, but I do not agree that this is accomplished, if they are to be construed as having vested unlimited power in the officers. Such a construction defeats that purpose. The public interests are best secured and protected by the enforcement of the rule of conduct, found in the terms of the statute. While the respondents here have acted honestly in the matter, the commission may not alwlays be composed of men who will do that, and this decision leaves it in the power of the commissioners of printing, at any time in the future, to award the contract as they please, if they shall chance to be men not altogether scrupulous. It may be truly said, that such an event is not likely to happen, but a statute ought to be so construed as to provide against possible, as well as probable, injury to the public interest. It is perfectly logical and consistent to say that the framers of the constitution and the statute intended to vest in the bidder a right which the law would vindicate by compelling the commissioners to award him a contract, if he *499should become clearly entitled to it, as a means of subserving the public interests. They undoubtedly regard the process of bidding as a means to that end, and I have no doubt that they intended the bidder to have some protection by way of inducement to him to bid. They may well have thought that, if bidders were to be wholly at the mercy of the commissioners, they might refrain from bidding. It seems to me this is a most reasonable and logical interpretation of the constitutional and legislative purpose. Therefore, I am unwilling to yield assent to the view, that such statutes are intended for the benefit of the public only, in the direct and immediate sense, and not for the benefit of the bidder at all. In the remote and substantial sense, it is intended for the benefit of the public, but, in the direct and immediate sense, it is intended for the benefit of the bidder as a means of promoting the public interest. The construction my associates have adopted will enable commissioners to make it promote personal or partisan interests, if they choose to do so'.
The majority opinion does not say the statute is merely directory, but it really makes it so. It is mandatory in form, and the recognition of the right of the lowest bidder by the award of the contract to him, no question of responsibility being involved, is the essence of the function required of the commissioners. It is the very heart and soul of the statute. Without that restraint upon their powers, they may do what they please and the purpose of the statute will be wholly defeated, if they should be so disregardful of the public interest as to favor a particular bidder, by reason of some improper motive, such as fear or favor.
• By far the greater number of cases in which this writ has been refused included something other than the relative amounts of the bids. In other words, the question of responsibility or fitness of the bidder, or compliance with some of the conditions, laid down for observance by the bidders, was involved. The whole law of the subject is carefully reviewed in State v. Rickards, 16 Mont. 145, cited in the majority opinion. That case holds that the respondents had discretionary power and that their decision upon the facts could not be reviewed. The printing required, under the contract, had to be done within a limited time and the question upon which the decision of the *500eommisioners seems to have turned 'was, whether the relator gave sufficient guaranties of his ability to do the work within that time. In its opinion, the court, discussing the conduct of the relators, in respect to this phase of the casé, said: “It appears that they considered all the facts and information which they could • reasonably, be expected to obtain, and that they acted wisely and discreetly, and not arbitrarily and wrongfully upon the information before them.” The reported decisions present a great variety of facts. In some instances, the respondents refused to make the award because of insufficiency, in form or substance, of the security offered; in others, because of the unfitness or irresponsibility of1 the bidder; and, in others, because, under the law, they had the right to reject any or all bids. In all these instances, stress was laid by the court ujton the discretionary power of the officers. In the general declaration of law, found in the syllabi, they did not in all cases say that the discretion exercised related to matters of this kind. These decisions are not to be taken as allowing discretion when no element of that sort is involved. There are many cases in which the jurisdiction by the writ of numdmws has been declared, when there was no such element involved. The writ was actually awarded to the lowest bidder in Boren v. Commissioners, 21 O. St. 311, State v. Commissioners, 39 O. St. 188, and People v. Contracting Board, 46 Barb. 254. Though refused in'the following cases, the same principle was asserted, the refusal being based upon non-compliance with conditions on the part of the bidder: State v. Board of Commissioners, 26 O. St. 531; State v. Barnes, 35 O. St. 136; State v. Printing Commissioners, 18 O. St. 386; American Clock Co. v. Commissioners, 31 O. St. 415; and People v. Buffalo County, 4 Neb. 150. In the last named case, it was refused because the commissioners, attempting to let the work, had" omitted essential proceedings and so .deprived themselves of the power to refuse bids or make a contract at the time and place of the alleged letting. State v. Herrman & Others, 66 O. St. 440, overruling former Ohio decisions without mentioning them, sustains the position taken in the majority opinion here. However, as the statement and opinion are very brief, they may not disclose all the facts. At any rate, it is a very unsatisfactory opinion. ' It is predicated on the holding in State v. *501Commissioners, 36 O. St. 326, asserting uncontrollable discretion in the letting officers, but it does not mention the later case in 39 O. St., aboye cited, in which, under the same statute, the writ was awarded, upon mature consideration, out of which a> “well considered opinion was evolved. The case in 36 O. St. seems to have involved collusion among bidders to overreach the commissioners. Unlimited discretion in the commissioners is. not necessary to the control of situations of that kind. The evidence of fraud and conspiracy on the part of the bidders, when it exists, is a circumstance, calling for a re-letting, under the construction I give the statute.
But discretion in the commissioners, extending to all phases of their work would not necessarily bar the remedy invoked. Officers exercising the discretionary powers cannot act arbitrarily. Season must govern their action.. They cannot say a clearly responsible man is irresponsible; or that a bidder has not complied with conditions, when he obviously has. Neither ignorance, a fanciful, groundless notion as to law, nor fraud will be permitted to bar the writ. The suggestion that only collusion or fraud will do so is too narrow. The authorities go beyond that. Judgment as well as honesty must be put into effect. Dillon v. Bare & Carter, 60 W. Va. 483; Glencoe v. People, 78 Ill. 382; State v School Directors, 134 Mo. 296; State v Kellogg, 95 Wis. 672; State v. Johnson, 103 Wis. 591; Briggs v. Hawkins, 16 R. L. 83; Sparrow’s Petition, 138 Pa. St. 116; Brewing Company’s Petition, 127 Pa. St. 523; Dental Examiner v. People, 123 Ill. 227. This principle has been enforced on applications for the writ by bidders, entitled to awards. State v. Commissioners, 39 O. St. 188; People v. Contracting Board, 46 Barb. 254. In the former case, the commissioners rejected the lowest bid on the theory of irresponsibility of the bidder. The court said: “We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and belief that ample discretion was vested in them to reject the bid of the relator, upon the information which they had. We are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to put them in possession of the real facts, before *502deciding against awarding him the contract. We must assume that if tbe commissioners, when the charges were made against Mitchell, had given him a hearing, he would have satisfied them, as he has us, that there was, in fact, no reason why this contract should not be awarded to him.” In the latter, it was rejected for alleged non-compliance with the condition as to security, and there the court said: “We must assume that the defendants put their refusal to grant the contract to Yickerman solely on the ground that his certificate of deposit did not conform to that required by the notice. That it did so conform in substance, if not absolute in form, and gave to the defendants the whole benefit of the deposit, equally as if it had been in every respect formal. That such being the case, there was no discretion left in the board to award to the relator the contract. He was entitled to it as matter of right and of law.”
Neither is the writ barred by complete action by the commissioners. The authorities are almost uniform to this effect, only an occasional case to the contrary being found. Take all our election cases, in which boards of canvassers and other tribunals have been compelled to go back and legally and correctly do what they had improperly done. Take also the New York and Ohio decisions, just analyzed, and all the other cases, here cited, for the proposition that abuse of discretion will be controlled by mando/mus. In Dillon v. Bare & Carter, every member of this Court said the fact that the assessors had completed their work of valuation did not bar the writ. Three refused it on the ground that they had not acted arbitrarily, and the other two, thinking they had, voted to grant the writ.
Nor do I think there is anything in the suggestion that Dillon v. Bare & Carter can be distinguished by reason of the status of the relator. I have already cited numerous cases in which the relators were private persons.
This is not a suit against the state. Neither the awarding of this contract nor its execution will bind the state to pay anything. It is entirely optional with the legislature to pay for the printing and binding, after it shall have been done, or not. Thé statute contemplates such an appropriation. By making it, the legislature will set aside the fund for the purpose, and consent that those entitled to it may have remedies against the administrative officers to obtain it. The respondents are not proceeded *503against as heads of executive departments. Here they constitute a mere board, charged with an administrative function.