has been given to another party and the work done, a court in its discretion would not grant a writ of mandamus to compel the city council to approve the contract.'

If the act undertaken by the city council or public officers is unlawful, it seems fairly well settled that the prosecuting officer of the state may file a bill in equity to restrain illegal acts or have them corrected; but when the officers had acted in good faith, and by an error of judgment committed unintentionally, a contract was let to a bidder who was not the lowest, but which increased the expense by $20 only, and the contractor had incurred large expense to carry out the contract, and there was no complaint by the taxpayers, it was held that the amount was too small to warrant any interference by the attorney-general.*

179. Liability of Public Officers for Acts Discretionary or QuasiJudicial; Misdeeds in Awarding the Contract.*-It is a well settled rule that no public officer is responsible in a civil suit where his acts have been judicial or discretionary, however erroneous or indiscreet they may have been. Some cases have gone so far as to hold that public officers in their judicial capacity were exempt from civil actions, however erroneous or malicious their acts may have been. To a contractor this will seem questionable law-law quite devoid of justice. The hardships it promises are tempered somewhat by many decisions that modify this declaration. It has been said. that a judicial officer acting without corrupt or malicious motives is not liable in damages for an erroneous interpretation or application of the law. and that this same exemption embraces his acts in a quasi-judicial capacity." So it has been said by good authority that certain acts and duties of public officers partake of the character of legislative and judicial functions, though not strictly so; but they may be so far of that nature as to exempt the officers from any liability for injuries resulting from their acts.

Among the duties and acts that belong to this class are those frequently required of engineers and commissioners, such as the location of sewers and other improvements, the adoption of plans and the determination of dimensions and sufficiency of things which should be distinguished from the subsequent carrying out of the plans. In the one case the officers and city are considered as acting judicially, which excuses it and them from liability for injuries resulting from errors of judgment, and perhaps even those from negligence. The letting of contracts to the lowest responsible bidder has

Talbot Paving Co. v. Council of Detroit (Mich ), 51 N. W. Rep. 933 [1892]; citing State B. of. Ed, 24 Wis. 683; People v. Contracting Bd. 27 N. Y. 378; People Campbell, 72 N. Y. 496; People v. Kent (I). 43 N. E. Rep. 760; Kelly v. Baltimore. 53 Md 134.

2 Dillon's Munic. Corp'ns § 912 and note; see also 15 Amer. & Eng. Ency. Law 1093, note.

*See also Secs. 844-859, infra.

3 East River Gas Co. r. Donnelly, 93 N. Y. 557, and 25 Hun 615 [1881]; People v. Gleason (N. Y.), 25 N. E. Rep. 4, [1890]; 19 Amer. & Eng. Ency. Law 489.

4 The Muscatine R. Co. v Norton, 38 Iowa 33 [1873].

Bishop's Non-Contract Law. § 746; Kirchman v. West & S. T. Ry. Co., 58 Ill. App. 515.

See Secs. 245-8 and 844-859, infra.

been held a judicial act, for the erroneous exercise of which no action would lie against the city.' The act should clearly be one which requires the exercise of judgment and discretion of a judicial or legislative nature, or its corrupt or negligent performance will create a liabilty to the injured party.'

In New Jersey it has been held that when a city charter or act of legislature expressly prohibits the making of a contract for work without having previously advertised for proposals in a prescribed mode, an award of a contract by a city official without such previous advertisement, made willfully and with evil intent, has been held to constitute a criminal offense, and to render the officer liable to indictment. It was the officer's duty to award the contract to the lowest responsible bidder, and a charge that the officer willfully and corruptly gave the contract to a bidder who had not offered the more advantageous terms was held to constitute a criminal offense.'

Neither the city nor its board is liable to an action of damages for refusing to accept the lowest offer or tender made, if the refusal is in good faith and judgment. The duty to award the contract has been held a duty to the public, and not to an individual, for the violation of which duty the statute gave no action; the lowest bidder could not therefore recover profits he would have made if the contract had been awarded to him. It is well settled that the city is not liable for damages arising from the rejection of the lowest bid by a department of public works intrusted with its works. This was held even when the statute declared that the contract "shall be let to the lowest bidder at the time of the opening of the bids, and shall be forthwith duly executed with such lowest bidder."

Selectmen who have been directed at a town meeting to contract for a public work, "the proposal to be advertised and the contract given to the lowest bidder," and who advertised for work and reserved to themselves "the right to reject all bids if none were satisfactory," were held to be authorized to refuse to award the contract to the lowest bidder and to reject all bids, and that the bidder had no right of action against the town on the contract, nor for time and money spent in making estimates of the work, and that his rights were not affected by a subsequent town meeting referring the whole matter to the selectmen to build at the earliest possible moment.'

180. Liability of Public Officers for Ministerial Acts.-If the duties of the public officer are not discretionary or of a judicial nature, he is liable for

1 Bishop's Non-Contract Law, § 747.

2 Bishop's Non-Contract Law. § 748.

3 State v. Kern, 51 N. J. Law 259 [1889]. 4 Dillon's Munic. Corp. (4th ed.), cases collected, § 470.

5 East River Gas Lt. Co. v. Donnelly, 93 N. Y. 557.

Walsh . New York City. 20 N. E. Rep. 825 [1889]; s. c., 113 N. Y. 142; and see Meechem on Agency, and Dillon's

negligence or wrongdoing to any one sustaining special damage in consequence thereof. So held when the same powers and duties which once belonged to a public officer were bestowed upon a contractor. Contractor was held responsible.'

When commissioners have accepted a proposal and directed a contract to be made with the bidder, but later they rescinded the resolution and resolved to do the work themselves on plans reported by and under the supervision of a committee, and to appoint a superintendent of the work; they are undertaking to carry out the work which as judicial officers they had resolved on and they cease to act as officers exercising judicial and legislative duties, and become liable individually for the consequences of their negligent acts, the city being relieved from responsibility."

So, too, public officers intrusted with the conduct of public work are subject to a personal action for damages if they have willfully exceeded their powers or have maliciously or corruptly transgressed their prescribed duties. The element of malice and corruption must exist when public officers are clothed with discretionary powers, for a court will not inquire into them so long as they are honestly exercised.'

Though the members of a common council, acting judicially in determining who is the lowest bidder, are not liable in a civil action or a criminal prosecution for their action, yet such immunity cannot be evoked by a higher bidder, who has been given the contract, to establish the validity of the contract; nor will the fact that the council has audited and allowed the claim give it any validity.**

181. Bids Cannot be Recalled.-When bids have been made and accompanied by certified checks, they cannot be recalled or withdrawn neither before nor after the bids are opened-not even by permission of the public officers who have the work in charge and who award the contract.

Public officers are invested with no discretion to permit amendments or alterations of proposals on account of any alleged mistake therein, unless the fact of such mistake and the requisite data for its correction are apparent on the face of the proposal.**

182. The Acceptance or Award.-A notice to the public of proposed. works, asking for proposals, is an invitation for tenders or a request for offers, and cannot be regarded as an offer to be accepted by the person who makes himself the lowest bidder. The tender or proposal submitted by the bidder must be accepted before a contract is created.' Not until the proposal of the

1 Robinson v. Chamberlain, 34 N. Y. 389 [1866].

Robinson v. Rohr (Wis.), 40 N. W. Rep. 668 [1888].

Edwards . Ferguson, 73 Mo. 686 [1881], and cases cited.

People v. Gleason (N. Y.), 25 N. E. R. 4 [1890]; Gas Light Co. v. Donnelly, 93

N. Y. 557.

5 Kimball v. Hewitt. 2 N. Y. Supp. 697 [1888]. A like decision was rendered by the attorney-general of the United States in June, 1895.

Beaver v. Trustees, 19 Ohio St. 97; Twiss v. Port Huron, 63 Mich 528.

Dillon Munic. Corp. (4th ed.), § 470;

* See Liability of Engineer, Secs. 826-859, infra.

bidder is accepted are the contract rights created, and both parties liable to damages for refusing to carry it out. When written proposals for work to be done are followed by a written bid and a written acceptance of such a bid by the proper authorities, a binding contract is created to do the proposed work.'

1 *

183. What Constitutes an Acceptance of the Proposal or an Award of the Contract.-A bid made according to advertisement and accepted by the proper authority creates a contract of the same force as if a formal contract had been written out and signed by the parties. The award of a contract to the lowest bidder creates a binding contract on behalf of the city to subsequently execute a contract, for a breach of which the city is liable in damages to the bidder. The record of the proceedings of a school board, signed by the secretary thereof, reciting a resolution to accept the bid of one of its own members to furnish supplies, is sufficient evidence of the contract. The acceptance must be in the terms of the proposal, without changes or modifications of the contract, plans, or specifications. An acceptance in other terms is but a counter offer, and it may invalidate the offer unless the change be agreed to by the bidder.** A bidder will be entitled to refuse to sign, and be justified in so doing, when the formal written contract presented for his signature contains stipulations not in the advertisement proposal and records. If he does sign the agreement he will be bound by it, the bid being held to be merged into the formal contract.'

If the acceptance is unqualified and no new terms are contemplated, it is irrevocable and binding. A subsequent notification that the acceptance was reconsidered is no defense to an action on the contract. If the bid be regularly made and it is the lowest, the acceptance of it creates a vested right to the contract, which cannot be taken away by subsequent legislation without just compensation."

A lowest bidder to whom the contract was awarded does not, by accepting

Doyle v. Dusenberg, 74 Mich 79: Howard v. School, 78 Me. 231 [1886]: Spencer v. Harding, L. R. 5 C. P. 561 [1870]; see 2 Engineering Magazine 481-487; Forster v. Ulman, 64 Md. 523.

1 Wiles v. Hoss (Ind.), 16 N. E. Rep. 800 [1888], 114 Ind. 371 [1887]; Jackson v. N. Wales Ry. Co., 1 Hall & T. 75; s. c., 6 Ry. Cas. 112. A schedule of prices for work and materials signed by the parties has been held not to be a written contract for the erection of a building. Eyser o. Weisgerber. 2 Iowa 463.

2 Garfelde v. United States, 93 U. S. 242; Lewis v. Brass, L. R. 3 Q. B D. 667 [1877]; The Guardians v. McLoughlin, 4 Ir. Rep. C. L. 457 [1856].

3 Lynch v. City of New York (Sup.), 37

N. Y. Supp. 798; Gt. Northern R. Co. v.
Witham, L R. 9 C. P. 16.

Alexander v. Johnson (Ind. Sup.), 41 N. E. Rep. 811.

5 Tuttle v. Love, 7 Johns. (N. Y.) 470; Highland Co v. Rhoades, 26 Ohio St. 411; Howard v. Indus. Sch. 78 Me. 230; Hughes v. Clyde. 41 Ohio St. 339; and see Martine v. Nelson, 51 Ill. 422; Loyd's Building and Buildings 93.

6 Highland Co. v. Rhoades, 26 Ohio St. 411.

Taylor v. Fox, 16 Mo. App. 527; semble. Kimberly v. Dick, 41 L J. Ch. 38 [1871].

8 Safety Insulated Wire and Cable Co. v. Baltimore (C. C A.), 66 Fed. Rep. 140. 9 In re Protestant Epis. School, 58 Barb (N. Y) 161.

*See Law of Contracts, Secs. 88-97, supra.

a return of the deposit made by him with his bid, after he had notice that his bid had been rejected, and after he had protested against reletting the work, and the commissioner had readvertised the proposals for bids, thereby waive his right to insist upon performance of the obligation created by the acceptance of his bid.'

An acceptance of a bid in writing which states that a contract shall subsequently be entered into is a conditional acceptance, and binds both the bidder and the acceptor. Though the acceptance, may not, with the bid, constitute the contract, it has been held to give the bidder a legal right to the contract if he complies with the requirements imposed in the advertisement." An act passed by the legislature subsequent to the award of contract, but prior to its formal execution, changing and fixing the plans of the work, cannot affect the validity of the contract.*

It has been held that the fact that it was contemplated that a written agreement should be executed did not prevent the proposal and its acceptance from becoming a complete contract. When it is announced in the advertisement that a formal contract will be prepared and signed, or the proposal is made dependent upon such a contract being entered into, then the acceptance, it seems, does not create the contract; at least it has been held that the work might be abandoned altogether." *

Public officers and owners will save trouble if they always make the acceptance of a proposal conditional on the bidder signing a contract of the prescribed form and furnishing approved sureties for the execution and completion of the work.

Whether an acceptance of a proposal creates a contract, or whether it is a subsequent contract to be entered into, is a question of intention of the parties when the proposal was made and the acceptance communicated." If the acceptance be made "subject to the signing of a formal contract,' or "subject to the preparation and approval of a written contract," it must be taken for what it says, and no different intention can be shown."

If the bid be conditional, the condition must be performed before the contract can be completed."

The fact that the owner or his architect said to one of the bidders, "You are the lucky man," has been held merely a recognition that he is the lowest

Lynch v. City of New York (Sup.), 37 N. Y. Supp. 798.

Crossly v. Maycock, L. R 18 Eq. 180. Hughes v. Clyde, 41 Ohio St. 339; Lewis v. Brass, L R. 3 Q. B. D. 667; sec also The Guardians v. McLoughlin, 4 Ir. Rep C. L. 457 [1856].

4 In re Protestant School, 58 Barb. (N. Y.) 161.

192.

Adams v. United States, 1 Ct. of Cl.

6 Municipal Sig. Co. v. Holyoke (Mass.),
*See Secs. 171, 176, supra;

46 N. E. Rep. 387.

Lewis v. Brass, L. R. 3 Q. B. D. 667 ; Crossly v. Maycock, L. R. 18 Eq. 180.

8 Winn v. Bull, L. R. 7 Ch. Div. 29 [1877]; and see Comm'rs v. Petch, 10 Ex. 611, and Spencer v. Harding, L. R. 5 C. P. 561; Mainprice v. Wesley, 6 B. & S. 420. And see other English cases in Emden's Law of Building, etc., pp. 58, 59; but see Eadie v. Addison, 52 L. J. Ch. 80, 47 L. T. 543, contra.

9 Howard v. School, 78 Me. 230.

and see Sec. 797, infra,