From the alternative writ of mandamus issued in this case upon the petition of the relator and from the answer filed in response thereto, it appears that the relator's right to a peremptory writ of mandamus is dependent upon the consideration and determination of a number of questions. These questions, stated somewhat in the order in which they occur, are whether there was in the first instance a lawful contract between the relator and the board of health as the contracting agency of the municipal corporation of which the respondent is mayor, respecting the collection and disposal of garbage for the Fourth district in the city of Wilmington, first upon the charge of an excess of the authority of the board of health in requiring, by its advertisements for bids, that each bidder file with his bid a cut or picture of the particular type or kind of cart he would use in the event of being awarded the contract, thereby making the bidding less competitive and more uncertain, and second, upon the ground that the award was arbitrarily made.

If we should consider these questions and find that a contractual relation does in fact exist between the relator and the municipality, it would then be necessary to determine, before awarding a peremptory writ of mandamus upon the mayor to sign and seal the written contract presented, whether as a matter of law, the contract was not made and completed by the bid and award, and nothing remained for the mayor to do but approve the bond. To the petition in the case of State of Delaware, upon the Relation of McCormick v. Fisher, 5 Pennewill, 273, 64 Atl. 68, was appended a copy of the bid made in that case, which by express language distinctly showed that both the city and the relator contemplated that their undertakings as shown by the bid and award should be reduced to writing and signed by them, and the court, holding the act of the mayor in such a matter to be merely ministerial, commanded him to execute the written contract. In the case under consideration, however, the bid upon which the relator claims to have been awarded the contract and bases his right to ask this court to compel the respondent to execute it in writing, was referred to in the petition but was not filed with the petition and therefore it does not disclose to the court, as did the bid in the Fisher Case, whether the contract was complete on the award or a subsequently written contract was contemplated and intended to be signed.

in the advertisement for bids, each bidder was requested and required to submit a cut or picture of the particular kind or make of cart he would use in the event of being awarded the contract. The relator complied with this request and filed such a cut with his bid and was formally awarded the contract by the board of health. Whether the contract was legal in the first instance or if legal whether it was complete on the bid and award or contemplated a written instrument subsequently to be signed, we do not say, but we do say, that from the petitioner's own showing, the contract which we are asked to compel the mayor to execute, makes no reference to the type of cart the petitioner showed by his bid he would use if awarded the contract. We therefore find that the contract which we are asked to command the mayor to sign is different from the contract based upon the petitioner's bid and the award by the board of health. We therefore conclude that the petitioner has failed to show that he is entitled to the remedy for which he prays.

The motion to quash the answer is refused and the prayer for a peremptory writ of mandamus is denied.

Argued before PENNEWILL, C. J., and WOOLLEY and RICE, JJ.

The above named relator on the 8th day of July filed in said court five petitions for the issuance of writs of peremptory mandamus. Objection was made to the issuance of rules to show cause.

In the first petition the relator asked that a rule issue requiring the former board of health "to show cause why a writ of peremp tory mandamus should not issue against them requiring them to meet and draw up and present to your petitioner for execution, a written contract in accordance with the contract actually awarded by them to your petitioner."

[2] This petition was, after argument, dismissed, for the reason that if such a contract should be drawn up and presented, it should be done by the present board. While the terms of office of the preceding members of the board of health have expired, the board itself has not ceased to exist, but the office continues with different personnel.

The facts are therefore entirely different from those in the Allee Case, 2 Marv. 543, upon which the relator relies.

In that case the board of canvass had but one duty to perform, and ceased to exist when such duty was performed. But not having performed that duty it was not functus officio, and the court required the board to reconvene and canvass the vote.

This petition was also dismissed because it did not appear to the court that there was any law making it the duty of the city solicitor to perform such duty.

In the third petition the relator asked that a rule issue, requiring Harrison W. Howell, mayor, "to show why a writ of peremptory mandamus shall not issue against him requiring him to execute the said above mentioned contract by signing his name thereto as mayor and affixing the corporate seal of the said 'the mayor and council of Wilmington' thereto."

This petition being predicated upon the issuance of the writ of peremptory mandamus in the first two petitions, which being dis missed, it was also dismissed.

The fourth and fifth petitions asked that rules issue requiring the said Harrison W. Howell, mayor, as aforesaid, and Samuel H. Benson, president of council, respectively, "to show cause why a writ of peremptory mandamus shall not issue against him requiring him to approve said bond as afore said in accordance with law.”

The last two petitions, after further consideration, were on the 16th day of July disposed of together. The facts and questions involved sufficiently appear in the opinions following the arguments of counsel.

is conceded that the board of health in awarding the contract for the Fourth district of the city of Wilmington, has not been guilty of fraud or wrongdoing of any kind, but has acted honestly and in good faith, the courts will not interfere to annul the contract it has made. 2 Beach on Contracts, § 1183 (1897); High on Ext. Leg. Rem. § 91.

"The charter has confided this discretion to the council, and the courts will not review the reasons of its action further than to see that the discretion is fairly and honestly exercised." Keogh v. Mayor and Council, supra; Findley v. City of Pittsburg, 82 Pa. 351 (1876); American Paving Co. v. Wagner, 139 Pa. 623, 21 Atl. 160; Schefbauer v. Kearney, 57 N. J. Law, 601, 31 Atl. 454 (1895); Madison v. Board, 76 Md. 397, 25 Atl. 337; State ex rel. Clough v. Shelby County Com'rs, 36 Ohio St. 326; Kelly v. Chicago, 62 Ill. 282; State ex rel. Eaves v. Rickards, 16 Mont. 145, 40 Pac. 210, 28 L. R. A. 301, 50 Am. St. Rep. 476; Anderson v. Board of Public Schools, 122 Mo. 61, 27 S. W. 610, 26 L R. A. 707; People v. Dorsheimer, 55 How. Prac. (N. Y.) 118; Johnson v. Sanitary Commission, 163 Ill. 287, 45 N. E. 213; Wilson v. Trenton, 60 N. J. Law, 399, 38 Atl. 635, affirmed by Court of Errors and Appeals, 61 N. J. Law, 599, 40 Atl. 575, 44 L. R. A. 542, 68 Am. St. Rep. 714.

2. Where an inferior body is invested with powers that involve the exercise of judgment and discretion, the courts will never interfere with the action of said body-unless it clearly appears—

said contract and affix the official or corporate seal of the municipality thereto. 1 Dillon, Munic. Corp. § 470; American Lighting Co. v. McCuen, 92 Md. 703, 48 Atl. 352; Keogh v. Mayor and Council, supra; Dillon, Municipal Corporations, § 470, p. 502.

(b) That said body has clearly been guilty of fraud. Liebig Mfg. Co. v. Board of Health, 8 Del. Ch. 26, 40, 34 Atl. 902; Harlan & Hollingsworth v. Paschall, 5 Del. Ch. 458; Keogh v. Mayor and Council, 4 Del. Ch. 498; 2 High on Inj. §§ 1186-1247; City of Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650; Andrews v. Board of Sup'rs of Knox County, 70 Ill. 65; Coe v. Schultz, 47 Barb. (N. Y.) 64; Fitzgerald v. Harms, 92 Ill. 372; Fairchild v. City of St. Paul, 46 Minn. 542, 49 N. W. 325; Mayor, etc., v. Mitchell, 79 Ga. 807, 5 S. E. 201.

3. The power conferred on the board of health to award contracts for the collection and removal of garbage to the "lowest and

thereto by the mayor, is a purely formal and ministerial act, the courts (upon his refusal to perform this ministerial duty) will compel him to do so by awarding a peremptory writ of mandamus. 14 Am. & Eng. Ency. Law, p. 165.

Argument of Counsel for Respondents.

1. The contract was illegal because when the board of health advertised for bids it unlawfully inserted in said advertisement the following language: "Bidders must submit cut and description of the style of cart or wagon to be used by them in the collection or removal of the garbage." Charter Laws and Ordinances of the City of Wilmington, 796, § 11; Packard v. Hayes, 94 Md. 233, 51 Atl. 32; Ertle v. Leary, 114 Cal. 238, 46 Pac.

Bridge Works v. Bristol, 170 Mass. 528, 49 N. E. 918; Dunham v. Boston, 12 Allen (Mass.) 375; Jersey City v. Brown, 32 N. J. Law, 504; Eads v. Carondelet, 42 Mo. 113; Spinney v. Downing, 108 Cal. 666, 41 Pac. 797.

2. No legal or binding contract was made by the city with the relator because the board of health did not lawfully award said contract in that it was not awarded to the lowest and best bidder. Section 4, Charter Laws and Ordinances of the City of Wilmington, 797; People ex rel. Coughlin v. Gleason, Mayor, 121 N. Y. 631, 25 N. E. 4; Molloy v. New Rochelle, 198 N. Y. 402, 92 N. E. 94, 30 L. R. A. (N. S.) 126; McQuillen on Municipal Corporations, § 1227; Faist v. Hoboken, 72 N. J. Law, 361, 60 Atl. 1120; Fourmy v. Franklin, 126 La. 151, 52 South. 250; Dement v. Rokker, 126 Ill. 174, 19 N. E. 33.

To the same effect are the following cases, except some of them are based upon contracts awarded to a special class of bidders: Shaw v. Trenton, 49 N. J. Law, 339, 12 Atl. 902; Inge v. Mobile, 135 Ala. 187, 33 South. 678, 93 Am. St. Rep. 20; Goddard v. Lowell, 179 Mass. 496, 61 N. E. 53; Lewis v. Detroit, 139 Mich. 306, 102 N. W. 756; Miller v. City of Des Moines, 143 Iowa, 409, 122 N. W. 226, 23 L. R. A. (N. S.) 815, 21 Ann. Cas. 207; State ex rel. Mitchell Furniture Co. v. Toole, 26 Mont. 22, 66 Pac. 496, 55 L. R. A. 644, 91 Am. St. Rep. 386; Adams v. Brennan, 177 Ill. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222.

3. If the contract was illegal and void, or had not been completed, the board of health had a right to rescind its action in awarding the contract to the relator.

It will be observed that two days after awarding the contract by a former board of health, the succeeding board of health rescinded the action of the former board in awarding the said contract to the relator.

"All proposals for the performance of the work required under this ordinance shall be accompanied by a certified check on a bank or trust company doing business in the city of Wilmington for the sum of two hundred dollars for each and every district as a guarantee for the proper execution of the contract." Section 13, Laws and Ordinances.

In addition to the quoted provision of the ordinance the statute of frauds provides that no action shall be brought on a contract that is not to be performed in a year, unless the same be reduced to writing. This contract, it will be observed, runs for three years.

The contention of the respondent is that until everything contemplated by the parties and by the statute of the state and the ordinances is done, the power is reserved to either

4. The mayor is not compelled to execute an illegal contract and is entitled to have the court decide whether the proposed contract was in compliance with the law.

It is respectfully submitted that it was not the intent of the court in the case of McCormick v. Fisher, 5 Pennewill, 273, 64 Atl. 68, to decide the mayor was bound to execute an illegal contract.

Section 7 of the City Charter (Laws 1883, c. 207) makes it the duty of the mayor “to take care to have the laws and ordinances of said city faithfully executed."

5. Writ of mandamus is not the proper remedy in this case. People ex rel. Lunney v. Commissioner, 72 N. Y. 496; Ryan v. Aldridge, 83 Hun, 279, 31 N. Y. Supp. 920; Paving Co. v. Mooney, 4 App. Div. 562, 38 N. Y. Supp. 495; Vincent v. Ellis, 116 Iowa, 609, 88 N. W. 836.

PENNEWILL, C. J., delivering the majority opinion of the court:

The relator claims that a contract was awarded to him by the board of health of the city of Wilmington, by resolution of said board, after the acceptance of his bid for the collection and removal of garbage in the Fourth district of said city; and that such contract was complete, valid and binding at the time it was so awarded. That being a complete and valid contract it became the duty of the defendants to approve the bond executed by the relator in pursuance of the statute, the sureties therein being good and sufficient.

We do not understand it to be contended by the defendants that the sureties in said bond are not sufficient; but they do contend that they are not required to approve the bonds until the contract made by the city with the relator, through the board of health, is reduced to writing so that it may be known for what the bonds are given.

In other words, the defendants contend that the contract was not complete upon the adoption of a resolution by the board of health awarding the contract to the relator, because the law contemplates that such agreement shall be reduced to writing and signed by the parties before it can be regarded as a complete and binding contract.

[3] The question is not, whether the acceptance of a bid based upon an advertisement and specifications, or the adoption of a resolution formally awarding a contract to the successful bidder, may constitute a valid and binding contract. It will not be denied that a perfectly good contract may

Section 13 of the ordinance provides that: "All proposals for the performance of the work required shall be accompanied by a certified check on a bank or trust company doing business in the city of Wilmington for the sum of two hundred dollars for each and every district as a guarantee for the proper

execution of the contract."

In the case of State v. Board, 81 Ohio St. 218, 90 N. E. 389, where the question before the court was very similar to the one here, it was said:

"In this case, under the statute cited, it is quite clear that the real substantial object

to be attained, is the making of the written contract; it is the only contract authorized by the statute, and all that precedes is but preliminary to the efficient object, viz., the written contract. Until that is executed the city is not bound. In the present case the board was authorized to bind the city by the written contract specified in the statute, but was wholly unauthorized to bind the city by any other contract."

In the case of Jersey City v. Brown, 32 N. J. Law, 504, the court said in the course of their opinion:

"Even in a case between private individuals, where no writing is required, if it appears that the parties, although they have agreed on all the terms of their contract, mean to have them reduced to writing and signed, before the bargain shall be considered as complete, neither party will be bound until that is done, so long as the contract remains without any acts done under it on either side. Wood v. Edwards, 19 Johns. (N. Y.) 212. The propriety of this rule is still more apparent in a case where one of the parties is acting in a public capacity, and their acts are made binding upon a municipal corporation."

See, also, Edge Moor Bridge Works V. Bristol, 170 Mass. 528, 49 N. E. 918; Dunham v. Boston, 12 Allen (Mass.) 375.

In Eads v. Carondelet, 42 Mo. 113, it was said:

"And when a parol agreement is assented to, which it is understood between the parties is to be put into writing, it is not binding till it is put in that form."

The provision in the ordinance requiring that the bidder shall furnish a certified check for two hundred dollars to guarantee the execution of the contract could have no purpose or meaning if a written contract was not required. It will be observed that such check is not demanded to guarantee the performance of the contract. A bond must be given for that purpose. The expressed purpose of the check is to secure the execu tion of the contract. The contract meant is the contract awarded by the board of health, and manifestly the contract to be executed is a written contract. Pennewill, 275, 64 Atl. 68, this court held that In the case of McCormick v. Fisher, 5 it was the duty of the mayor to sign a contract awarded for the collection and removal of garbage; and it appears from the reported case that the court were of the opinion

that a written contract was necessary. It is true a bond, and not a check, was required to be given by the bidder, and the condition of the bond was that he should, in case the contract was awarded to him, execute an agreement under seal for the performance of the contract; and practically the same provision was contained in the specifications.

The specification in the Fisher Case was as follows:

shall be accompanied by bond with approved "All proposals provided for in this section conditioned for the good faith of the bid." security in the sum of five hundred dollars

The bond in that case provided that "if the above bounden Daniel McCormick shall have awarded to him by the said 'the mayor and council of Wilmington' the contract for which the above proposal is submitted, and shall thereupon execute an agreement under seal with said 'the mayor and council of Wilmington,' for the performance of said contract," etc.

In the present case no such bond was required, but the specification provided that "each bidder must furnish a certified check for two hundred dollars for each district with his bid as a guarantee for the proper execution of his contract, which amount shall be forfeited by the bidder if the contract be awarded him and he fails to execute the contract and give bond."

We think the specification and bond in the one case, and the specification and check in the other, alike clearly indicated that the contract should be reduced to writing so that it might be signed or executed by the person to whom the contract should be awarded.

It is equally clear, we think, that the parties themselves understood, and expected

We think it is clear: (1) That the law

ing and signed by the respective parties.

Clearly such was the expectation of the