
    No. 687
    MULCAHY v. AKRON (City) et al
    No. 18704.
    Supreme Court
    ON MOTION TO CERTIFY
    Motion to require Summit Appeals to certify.
    Docketed July 15, 1924.
    2 Abs. 452;
    OA.
    2 Abs. 566;
    mo. cer. sus.
    2 Abs. 610.
    801. MUNICIPAL LAW — Suit by taxpayer to enjoin execution of a public contract.
   This case comes before the Supreme Court upon a motion to certify. Mulcahy, a taxpayer of the city of Akron, brought an action to enjoin the city and its officials from entering into a contract with the defendant, the Moran Construction Company, for the construction of a municipal building. Mulcahy had been one of the bidders but was not the lowest bidder. Prior to March, 1924, Akron had caused to be prepared plans and specifications of a municipal building. These plans and specifications were approved' by the City Council by a resolution which directed the Service Director to receive bids for the eon-struction of the building. The Service Director advertised for bids for the proposed structure.

Attorneys — Gommins, Brouse, Englebeek & McDowell and Rockwell & Grant, for Mulcahy; H. M. Hagellarger, for Akron; all of Akron.

In bidding, the bidders were required^ first to bid for materials and labor; to submit his proposal for some 30 alternates; substitutions of high grade materials of manufacturers not mentioned as acceptable within the base bid. Among other, things the specifications were altered provided the method for determining the amount to be paid therefor. The Moran Construction Co. was among the six general contractors bidding, but failed to furnish the names of his proposed subcontractors^ Later the city called upon Moran to furnish the names of all sub-contractors which he proposed to employ, which was done, and thereupon the contract was awarded to Moran.

The plaintiff claimed that the scheme and plan adopted by the city for receiving bids upon the proposed improvement did not afford to the city the competition which is required in the letting of public contracts, and if carried into effect by awarding the contract as proposed, it would permit the city td contract for a building, many parts of which were never planned or specified, and would permit the city, at the will of the officials or its architect, to build a structure of a design and of materials and workmanship never contemplated by the bidders for the work nor by Council which approved the plans. The Court of Common Pleas found the issues in favor of the plaintiff and enjoined the defendant from executing the proposed contract.

The defendants prosecuted errer to the Court of Appeals. In rendering the judgment for the defendants, and refusing the injunctive relief, the Court of Appeals held that (1) By virtue of Art. 18, Sec. 3, of the Ohio Constitution a municipality may award a contract without complying with the statutory provisions imposing limitations upon the power of a municipality to contract. (2) As the council had approved the plans and specifications, the contract may be awarded on these plans and speeificátions even though so drawn as to wholly prevent “competition” as that word has commonly been defined. (3) In a non-charter city there are no limitations upon the authority of council to award contracts in any manner in which it sees fit, and in charter cities there is no such limitation unless it be in the charter itself. The principal questions before the Suprenfe Court for its consideration are:

1. Has a tax payer a right to maintain an action to enjoin the execution of a public contract ?

2. Can the motive of the tax payer in bringing said action be inquired into?

3. Can the city of Akron award a public contract without complying with the statutory provisions limiting the power of a municipality to contract?

4. What effect does Art. 18, Sec. 3, of the Ohio Constitution have upon statutes limiting the power of municipalities to contract?

5. Where the Council has approved the plans and specifications, can the contract be awarded on these plans and specifications even though so drawn as to wholly prevent competition?  