
    CHOICE OF MATERIAL FOR STREET PAVING.
    [Common Pleas Court of Butler County.]
    John B. Scott, a Tax-Payer, etc., v. The City of Hamilton et al.
    
    Decided, August 1, 1904.
    
      Street Improvements — Selection of Material — Not the Privilege of Abutting Property Owners — Selection of, by Council in the Alternative —Not a Delegation of Power — Asphalt and the Trust.
    
    1. The action of council in designating, in the alternative, the kind of material to be used in improving a street is not a surrender of any of the legislative power with which it is invested, and its agent, the board of public service, has the right under such a determining ordinance to make the selection from the materials named, and the material so selected becomes the material chosen by council.
    2. The right is not given by the Legislature to abutting owners to ñamé the material which shall be used in improving a street, and when the board of public service, acting under the authority of a determining ordinance, has exercised its discretion in that behalf its action can not be interfered with by the courts, except for fraud or collusion or such gross carelessness as amounts to fraud.
    
      3. Nor is the discretion oí the -board of public service to be interfered with in the matter of awarding the contract to another than the lowest bidder, except for the same cause.
    4. The court finds from the evidence in this case that asphalt is not a patented article, and not under the exclusive control of any company or trust; and while some of the machinery used by certain companies is patented, there is other machinery which is not patented, and asphalt material can be procured from other companies.
    
      
      Affirmed by the circuit court, Scott v. City of Hamilton, 7 C. C.— -N. S., 493.
    
   Belden, J.

This is an action for injunction. It 'does not present the questions jnst decided in the cases of J. M. Quill and the Kirchner Construction Company against the city of Hamilton, for the reason that this plaintiff is a tax-payer of the city of Hamilton, and brings the suit, not only in his own behalf, but in behalf of the city. He seeks to set aside the award of a contract to William N. Andrews for the paving of East High street in the city of Hamilton, Ohio, which award was made on the first day of July, 1904. The grounds upon which the court is. asked to set aside that contract or award are these:

1. Plaintiff says that the particular kind of paving material that was to be used on said street, that is, whether it should be sheet asphalt, asphalt block, or vitrified brick, together with foundations, curbing, guttering and filling material, was not selected and determined upon by tbe council of said city, but was selected, decided upon and determined by the board of public service of said city after tbe bids for paving said street were received and filed.

That the board of public service is merely an administrative body of said city, and had no right or authority under the law to choose, decide upon and determine the kind of paving' material to be used on said street, to-wit, asphalt block and concrete and limestone curb for the paving of said street; but the council of saicl city of Hamilton is the legislative body of said city and was tbe proper body and authority to choose, decide upon and determine the kind of paving material with which said street should be paved. This is one of the important grounds set out as a reason why the court should set aside this contract.

2. Plaintiff And more than a majority of the owners of the abutting’ real estate on said street between said points measured by the front foot, to-wit, representing about ninety per cent, of said frontage, petitioned council for the paving of said street with vitrified brick, but council ignored and disregarded said petition, and illegally referred the choice of said materials to be made by the board of public service as above stated. Plaintiff avers that vitrified brick is the proper material for the paving of said street, and is superior for said purpose to asphalt block, and is the material Avhich plaintiff and most all of the property owners of said street wanted, and still want, placed on said street. Plaintiff also avers that block asphalt is a faulty, defective and worthless paving material, and that it fails to give satisfactory service, and that the streets of Hamilton that have been paved with block asphalt have proved defective and worthless.

The court will dispose of the second ground at once, for this reason, that the law of Ohio confers upon the members of the board of public service, acting as a board, the power to select the material with Avhich the streets shall be paved. It would seem only reasonable and proper for the members of the board to consult the interests and wishes of property owners who have to pay for this improvement — at least have to pay for the greater part of it — but there is nothing in the law requiring the members of the board to consult property owners upon this point, and the court is bound by the law as long as the members of the board of public service act in good faith, and without fraud or collusion, or such gross negligence as amounts to fraud.

Some arguments might be made that the property owners ought not to be consulted in this matter, for the reason that the streets of the city are used by all the inhabitants of the city, and by people Avho travel to the city and through it, and that it is important that the best material be laid upon one street, or section of a street, as Avas laid originally- But it is not Avorth while to enter into an argument upon that subject, for the reason stated, that the Legislature has not given the property OAvners the right to select the material — that right is given by the General Assembly, the law-making power for the city, to the members of the board of public service when they act as .a board, and the court can not take away that right from them, except in case of.fraud, or such gross and wanton negligence as amounts to fraud. Therefore, that ground the court finds not well taken.

3. Plaintiff avers that the bid of William N. Andrews for said paving was not the lowest and best bid therefor, but that there were other contractors who made bids for said paving at much lower figures than the bid of William N. Andrews; and there were bids by other contractors for vitrified brick at much lower figures than the bid of William N. Andrews for vitrified brick or asphalt block.

Plaintiff avers that said other contractors are responsible parties and are competent and experienced in the work of paving, but that said William N. Andrews has had no practical or scientific knowledge and skill thereof as required; and further fhát he has no plant and no means of establishing a plant, and that it' will require a large sum of money as’ an investment in a plant or manufacturing establishment to prepare said paving materials.

Now, in regard to the allegation that the bid of William N. Andrews is not the lowest and best bid therefor, the question is whether the members of the board of public service had the power to award the contract to one whose bid was higher than that of others.

The court has already cited the case of Coppin v. Hermann, et al, Com’rs, 6 N. P., 452, decided in the Superior Court of Cincinnati, General Term, November, 1889.

The discretion is vested, as I have stated, with the members of the board. Upon this point reference will be made to the following additional authorities: State, ex rel Walton, v. Hermann et al, 63 O. S., 440 (where there is a difference in bid of $3;280); Field v. Barber Asphalt Co., Advance Sheets U. S. Supreme Court, July 15, 1904, p. 784; Hubert et al v. Mason, 29 O. S., p. 562; State v. Board of Education (Columbus), 20 Bull., 156; Beach on Public Corp., Section 279.

The discretion of the members of the board of public service is not to be interferred with except for fraud, or gross carelessness amounting to fraud. State v. Board Public Affairs, 4 C. C., p. 76; State v. Village St. Bernard, 10 C. C., p. 74; Com’rs Wood Co. v. Pargillis, 10 C. C., p. 376; State v. Com’rs Shelby Co., 36 O. S., p. 331; Spelling on Extra. Relief, Sections 1432, 1433.

I find that these members of the board of public service had discretion in the matter, and the evidence does not show any fraud or collusion'on their part, but I think does clearly show an attempt on their part to discharge their duties honestly and faithfully. That ground is found not well taken.

4. Plaintiff avers that said board of public service made no examination or investigation of the respective merits of the materials bid upon by said William N. Andrews and the other contractors who made bids on said paving, and did not award said contract to William N. Andrews in good faith, but the same is a fraud upon the rights of the plaintiff and all other property owners on said street between said points mentioned, and upon all tax-payers of the city of Hamilton who will be required to pay for said improvement.

The' court finds that ground not sustained by the evidence, and, therefore, that is not well taken.

5. Plaintiff says according to the ordinance authorizing and providing for said improvement, a portion of the costs thereof .was to be assessed against property abutting said improvement benefitted thereby, and a portion of said costs and expenses was to be paid by the city of Hamilton; that no certificate as required by Section 45 of the Ohio Municipal Code act, and now Section 1536-205 of the Revised Statutes of Ohio, was by the auditor of said city before or at the time of the passage of the resolution awarding said contract, or before or at the time of the entering into of said contract, made, nor was such a certificate filed and recorded.

The court finds that is not. sustained by the evidence. A certificate of the city auditor was on file in accordance with law.

Plaintiff says that if said contract is entered into and fulfilled it will be an abuse of the corporate • powers of said city, and a misapplication of the funds of said city, and will cause an illegal tax to be assessed against the plaintiff and all others who own real estate abutting upon said street, and upon the plaintiff and all tax-payers of said city who will be required to pay a portion of the city’s share of the costs of said improvement. There was an amendment to that petition on July 23, 1904, in which these allegations are made:

That the proceedings adopted and attempted to be adopted by the city of Hamilton for the improvement of East High street as alleged in his petition, and for contract entered into or about to be entered into between said city of Hamilton and said William N. Andrews for said paving, and any and all assessments to be levied therefore are, and will be, irregular, illegal and void, for the following reasons, in addition to those stated in said petition.

Asphalt block is a patented article and is, and for a long time has been, under the exclusive authority, direction and control of a certain company or trust that owns said patent right, and said company or trust controls the use of asphalt block and the price for which asphalt blocks are sold, and thus has it in its own power to prevent and destroy any competitive bidding for paving with said asphalt block except the bid of William N. Andrews; and that for the above reasons there was no competitive bidding with William N. Andrews for the paving of said East High street with asphalt block; that said trust has an agent in Ohio, to-wit, C. IT Burchinal, who has sole charge of all the territory for said trust iii said state and that there was collusion bobeen said agent, William N. Andrews and said board of public sei rice.

The evidence does not sustain any of those allegations. The evidence shows that asphalt block is not a patented article, that it is not under the exclusive authority, direction and control of any one company, of trust, but that asphalt can be bought from different companies, and that while some of the machinery used by certain companies is patented, there is other machinery which is not patented, and asphalt material can be procured from other companies. The court finds that the ■ averments of the amendment to the petition are not sustained by the evidence.

This leaves for decision the first ground heretofore referred to, the one to which the court and counsel have paid most attention namely: Was there an illegal delegation of power of council to the board of public service in this ease in regard to the selection of material?

The council passed what is called a determining ordinance, providing that this street might be paved with block asphalt, sheet asphalt, or brick. The board of public service advertised for bids upon these three materials, and they selected the bid, and awarded the contract to the bidder for asphalt block, Mr. Andrews being the only bidder on that material.

This presents a very important question. Many authorities hold that legislative power can not be delegated. Thompson v. Schmerhorn, 6 N. Y., 92; Birdsall v. Clark, 73 N. Y., 73; Smith v. Duncan, 77 Ind., 92; Hydes & Goose v. Joyce, 4 Bush., 464; Knauss v. Columbus, 13 Dec., 200; Am. Dec., 311; Cooley on Const. Lim., p. 248 (6th Ed).

The law is very plainly stated in 77 Ind. Rep., in the case of Smith v. Duncan. I read from the syllabus:

“The order of a city council for a street improvement must specify the nature and plan of the work in such manner as to afford a basis for letting the contract.
“An order which does not specify of what wood the blocks shall be made,-how they shall be laid, and to what grade, but leaves these and like particulars to the city engineer, is insufficient, and will not warrant a precept for the enforcement of an assessment.
“Such delegation of the powers and duties of the council to the engineer is not permissible.”

On page 95 of the opinion this is found:

“In the case of Merill v. Abbott, 62 Ind., 549, after a careful review of the authorities, it was said: ‘We feel justified in saying that an order for a street improvement must, in appropriate terms, either ordain, resolve or declare that the street to which it refers shall be improved, specifying the nature, character, or plan of the proposed improvement in such a way as to give at least a general direction to the letting of the work and the execution of the -contract contemplated by such order. Such an order is, in some respect, analagous to a judicial act, and ought clearly and explicitly to prescribe what it authorizes to be done as regards the contemplated improvement to which it is intended to apply.”

Then it holds that the law does not contemplate the delegation of such power to the engineer. The question in this case is, whether this was a delegation of power which was unlawful.

Section 55 of the Municipal Code, as passed in 1902, provides- (after stating that council shall determine whether to proceed with the proposed improvement or not, or whether the claims for damages filed shall be jtidicially inquired into, etc.) that, “and if it decides to -proceed therewith, an ordinance for the purpose shall be passed. * * # said ordinance shall set forth specifically the lots and lands to be assessed for the improvement; shall contain a statement of the general nature of the improvement and the character of the materials thereof. ”

Now, that was amended on April 20, 1904 (97 O. L., pp. 122-123), as follows:

■ “And if it decides to proceed therewith, an ordinance for the purpose shall be passed; said ordinance shall set forth specifically the lots and lands to be assessed for the improvements; shall contain a statement of the general nature of the improvement and the character of the materials which may be bid upon therefor.”

Now, it is argued those “materials” mean guttering, manholes, etc., called for in the specifications. But the court thinks that point is not well taken. The word “materials” means the character of the material that enters into the paving, such as asphalt block, asphalt sheet, or brick, or other permanent paving material.

Council has control of the streets (Municipal Code, Section 28). Council may'make assessments for improvements (Municipal Code, Section 50, et seq). '

I have quoted Section 55 of the Municipal Code (as amended in 97 O. L., 123), applying to cases where bids have been received. It does not seem to apply to cases like the one at bar, where bids have not been received. It is retroactive in its nature. I find, therefore, Section 55 does not apply.

The board of public service is undoubtedly an administrative body. Section 139, Municipal Code (1902), reads as follows:

‘' The directors of public service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all public institutions, except where otherwise provided in this act.”

But while an administrative body, they have authority to enter into contracts. I cite Section 143, of the Municipal Code:

“The directors of public service may make any contract or purchase supplies or material or provide labor for any work under the supervision of that department not involving more than five hundred dollars. When any expenditure within said department, other than the compensation of persons- employed* therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council and when so authorized and directed, the directors of public service shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.”

The board of public service is authorized to sign contracts for council. Section 123 of the Municipal Code is as follows:

“The powers of council shall be legislative only, and it shall perform no administrative duties whatever, and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may be otherwise provided in this act. All contracts requiring the authority of council for their execution should be entered into and conducted to performance by the board of officers having charge of the matters to which they relate, and after authority to make such contract has been given and the necessary appropriation made, council shall take no further action thereon.”

Now the question is this ease is whether council has acted. Undoubtedly if council would pass an ordinance declaring East High street should be paved, and name no material, that would not give the board of public service power to select the material. But here they have named three materials, in the alternative. Council has named them — not simply the board of public service — but the legislative body has named the three materials, and the question is whether delegation of power to select one of three materials ñamed is delegation of legislative authority.

In 3 C. C., 403, State, ex rel, v. Board of County Com’rs of Williams Co., the syllabus reads as follows:

“An act authorizing county commissioners to issue bonds," either to repair, enlarge or improve its court house or build a new one, is not a delegation of power to determine what shall be done, and thus taking effect on the approval of the board. ’ ’

I cite from 1 Bates’ Digest, p. 427, Section 54. In this case there was a discretion in the county commissioners to either repair, enlarge, or improve its court house, or build a new one, yet the courts have held that is not an illegal delegation of power.

I cite further 24 Bull., 175, Bonebrake v. Wall;

“A statute does not delegate legislative power by giving to a board discretionary power as to the details of governing a city. ’ ’

In 1 O. S., p. 77, Railway Co. v. Com’rs of Clinton Co., the Supreme Court says, in the fourth syllabus: ‘ ‘ The' power of the General Assembly to pass laws can not be delegated by them to any other body, or to the people. ’ ’ But held in that particular ease that there was no unlawful delegation of power. But Judge Ranney, in his opinion in the case, discussing this question (after stating that the General Assembly can not surrender any portion of legislative authority with which it is invested, or authorize its exercise by any other person or body) says:

“While this is so plain as to be admitted, we think it equally undeniable that the complete exercise of legislative power by the General Assembly does not necessarily require the act to so apply its provisions to the subject-matter as to compel their employment without the intervening assent of other persons, or to prevent their taking effect only upon the performance of conditions expressed in the law.
“The true distinction,-however, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to the latter no valid objection can be made.”

Now, it seems to the court that this was authority or discretion conferred as to the execution of this particular matter passed by the council, and it falls within the principle laid down by Judge Ranney.

The same doctrine governs in what is known as the local option case (Gordon v. State, 46 O. S., 607). The court in its opinion in the above ease refers to this opinion of Ranney, J., and approves the same (p. 633).

Alternative bidding is permissible. The authority, I think, comes from the act of council, not from the act of the board of public service.

I think this question has fairly been decided by the circuit court (although the opinion was not referred to by counsel), in the 17 C. C. Rep., 516, affirmed in 60 O. S., 621. This was an. act of the Legislature providing for the appointment of commissioners to build the new water works for the city of Cincinnati. I read the second and third syllabi:

The action of the commissioners in delegating certain of their powers to the chief engineer to determine as to certain matters, is not such a delegation of power in the sense that it is taking away from the commissioners the power vested in them. The duties the chief -engineer performs are done as the agent and employe of the trustees. He uses his'technical knowledge as their agent, and he is entirely subject to the control of the trustees, and what is done is by their authority, and is under their control, and his exercise of this power is their exercise of it.
“3. There can be no objection to the provision in the contract as to alternative bidding, nor to the provisions therein by which alterations and modifications in the contract are provided for. In practice such changes have always been found necessary, and in the nature of things must be. ’ ’ Ampt v. City of Cincinnati et al, 17 C. C., 516.

Now, it looks to me if this was an action of a private individual there would be no question about it.

If A, a resident of New York, desires to build a house in Hamilton, and executes a power of attorney authorizing B, of the last named place, to sign a contract for the erection of a house of wood, or brick, or stone, B has the right to select any one of these materials, and enter into a contract for the same, and when such contract is executed and delivered, it is the contract of A, the principal, and not that of B, the agent. “Facit per alium, facit per se.”

Andrew & FLwrlan, for plaintiff.

.Warren Gard, Frank Bichler and 77. G. Denman, for defendant.

So in this ease when the city council designated the kind of materials to be used, in the alternative, its agents, the board of public service, had the right to make a selection, and when made, such selection became the material chosen by the city council.' The contract is binding upon the city, because the city' council, the local legislature, authorized the selection of the material.

The contract required the authority of council, but after that authority was given the execution of the contract devolved upon the board of public service. See Sections 123 and 143, Municipal Code.

The. voice which speaks the will of the municipality is the council, but the hand which records that expression is the board of public service.

The court finds, therefore, that' the plaintiff has not established the allegations of his petition, and is not entitled in law to the relief for which he prays. The application for temporary injunction will be refused; the case having been heard upon its merits, the petition will be dismissed, at costs of plaintiff.  