
    The State, ex rel. Shafer, v. Merrell et al.
    
      (Decided October 11, 1932.)
    
      Mr. James N. Linton and Mr. W. H. Jones, for plaintiff in error.
    
      Mr. Gilbert Bettman, attorney general, for O. W. Merrell and Joseph T. Tracy.
    
      Mr. Smith W. Bennett, for the Wesco Company.
   Kttnkle, J.

In the amended petition filed in the common pleas court the relator states that he is a citizen and taxpayer of Franklin county, Ohio, and that he brings this action on relation of the state of Ohio for the benefit of all of the taxpayers thereof.

In brief, he claims that the defendant O. W. Merrell is the duly appointed, qualified and acting director of highways of the state of Ohio, and has general supervision of the construction, improvement and maintenance of all roads comprising the state highway system, and the repair thereof, and the entering into of contracts for the construction, improvement and maintenance of roads, and also the preparing of such plans as may be necessary in the construction of said improvements.

He further says that the defendant Tracy is the duly elected, qualified and acting auditor of the state of Ohio, and as such is required by law to approve and authorize the payment of all requisitions made by the! director of highways in payment for the construction and improvement of said roads; that prior to April 30, 1932, the defendant as director of highways determined to improve state highway No. 128 by grading, widening and paving the same with the necessary structures thereon, located in Allen and Hardin counties in the state of Ohio, consisting of 24.7 miles, and known as project No. 210, divided into proposals Nos. 1 to 4, inclusive, and that prior thereto he caused to be made a map of the highway to be improved in outline and profile, as well as specifications, profiles and estimates covering the proposed project; that said director placed in the hands of prospective bidders detailed estimates of quantities and costs of said project, information to bidders, and detailed proposal or bidding forms, in which were set forth the manner and form in which bids on such project should be submitted; that a copy thereof was placed in the department of highways of the state of Ohio, and also in the office of the resident district deputy director of highways for public inspection; that an advertisement for bids was caused to be published in the manner described in detail in the amended petition; that the plans, estimates and information to bidders, as well as the proposal forms, were based upon what is known as a unit price contract for the construction of the surface of said highways; and that the plans, estimates, information to bidders and proposals provided for the construction of a bituminous pavement consisting of a surface course known as type B, constructed of bituminous material known as T-5, T-6 or T-13, one inch in thickness, and also a binder of bituminous material composed of what is known as T-5, T-6 or T-13, and contained an estimate of the cost of the materials to be used in said project, in the form described in detail in the amended petition.

Plaintiff in error further claims that said plans were wholly inconsistent and contradictory within themselves, and confusing to bidders, in that said plans for proposal No. 3 called for 1" binder, T-5, T-6, as well as 1%" binder T-6; that a typical section shows that said plans called for 1" binder, T-5 or T-13, as well as lVs" binder, T-6; and, further, said proposal forms were inconsistent with and contradictory to said plans for each of said proposals and were confusing to bidders, in that each of said plans called for 2 bituminous pavement where T-6 was to be used, whereas said proposal bidding forms called for bids upon bituminous pavement only two inches thick if T-6 was used.

Other discrepancies are set forth in detail in the amended petition, and plaintiff in error claims that the same resulted in uncertainty and confusion in the minds of prospective bidders and prevented free and open competition in the letting of the contract for the construction of said project; that notwithstanding such irregularities the bids were opened by the director of highways on the 20th day of May, 1932, as provided in the advertisement, and thereafter a contract was let to the Wesco Company at its bid price of $266,908.72, which price said director of highways pretended to find was the lowest and best unit price bid for the construction of said project.

By reason of the averments of the amended petition the plaintiff in error prays that the contract and said letting be held to be null and void and be set aside, and that the said director of highways be perpetually enjoined from carrying out the terms of the contract.

To this amended petition answers were filed by the defendant Wesco Company, the defendant director of highways and the auditor of state, to which a reply was filed by plaintiff in error, and the issues so raised by the pleadings were submitted to the trial court, with the result that the court refused to grant an injunction and dismissed the amended petition of plaintiff.

From such judgment of the trial court, error is prosecuted to this court.

Did the trial court abuse its discretion in refusing to grant an injunction as prayed for?

A very brief statement of the facts disclosed by the record is that the improvement in question was being made in Allen and Hardin counties in the state of Ohio; that the improvement consisted of four projects or proposals, each being for a different section of the highway; that they were, however, to be let under one contract; that alternate bids were asked for on three different types of bituminous paving materials known as T-5, T-6 and T-13; that the plans specify a surface thickness of 1" and a binder of 1" for types T-5 and T-13, and a surface thickness and a binder thickness of 1%" for T-6; that while the amended petition states that the plans and specifications were changed in so far as type T-6 is concerned from 2 to 2bituminous covering, the evidence discloses that the change was made in this respect only in the proposals and not in the plans and specifications. The plans and specifications contained the thickness of T-6 at 2%".

The irregularities and resultant confusion complained of in the amended petition relate to the type T-6. The contract, the enforcement of which it is sought to enjoin, was awarded solely on T-5. No part of the contract awarded relates to type T-6.

Sections 1196, 1206, 1207-1, 1208, et seq., General Code, relate to and define the powers and duties of the director of highways in reference to the letting and awarding of contracts of this nature.

Section 1207-1 provides that the director may, if he deems it expedient, enter into any contract authorized by this act on a unit price basis, and defines what the bids shall contain.

Section 1208 authorizes the director of highways to reject any and all bids.

Acting under the authority of this section the director of highways did reject all bids under T-6.

Counsel have favored the court with helpful briefs in which many of the pertinent facts are set forth and various sections of the Code and authorities of this and other states are cited and discussed. We have considered these briefs with care and examined the anthorities cited therein, as well as additional authorities.

We shall not attempt, however, to discuss the evidence in detail, nor to review or distinguish the authorities cited, as counsel are thoroughly familiar with the same, and a detailed recital of the evidence or discussion of the authorities would not be helpful.

We will merely announce the conclusion at which we have arrived after a consideration of the record and the briefs of counsel.

There are certain fundamental principles, however, that are well established, and really need no citation of authorities.

It is well settled that courts should not grant perpetual injunctions unless the party seeking them has shown a clear right thereto. This case comes into this court on a proceeding in error, and not by appeal. This court would therefore not be warranted in reversing the judgment of the lower court unless we were prepared to find that the lower court had abused its discretion in refusing to grant the injunction prayed for.

It will also be kept in mind that this is not a proceeding to enjoin the highway director from proceeding to execute a contract based upon a bid for T-6. Had a bid based upon T-6 proposal been accepted, then the irregularities complained of would be squarely presented for determination. But as above stated the bids based upon type T-6 were all rejected, and the contract in question is based solely upon proposals for type T-5.

From a consideration of the entire record we are unable to find that the irregularity complained of could have misled or confused the bidders. There is no suggestion in the evidence tending to show bad faith or a disposition upon the part of the highway department to mislead.

There is nothing in the evidence tending to show that injury has resulted to the public or any taxpayer by the acceptance of the bid upon T-5.

Upon the contrary a study of the proposals indicates that the public and the taxpayers were benefited by such acceptance.

We find no violation of any mandatory provision of the statute by the director of highways in relation to the letting of this contract.

In some respects this case resembles State, ex rel. S. Monroe & Son Co., v. Baker, Dir. of Finance, 112 Ohio St., 356, where, at page 362, [147 N. E., 501], the court, in referring to certain changes in the specifications, says:

“It does not appear that any discrimination was exercised in favor of any bidder or against any other bidder. No complaint is made by any bidder. The successful bidder and the director of highways are both satisfied, and it 'does not appear that any party to the proceeding has been in any wise prejudiced. A conclusive reason why no prejudice can result to any one in this controversy is that the advertisements call for unit bids.”

In the case at bar, in so far as the record discloses, none of the contending bidders are before us complaining, but the complaint is made, in so far as the record shows, by a citizen and taxpayer of Franklin county, while the work is being prosecuted solely in Allen and Hardin counties.

Counsel for the Wesco Company in a supplemental brief filed since the hearing of the case, questions the right of Mr. Shafer to maintain this action as a taxpayer. The record contains the following:

“Q. Where do you reside, Mr. Shafer? A. 1622 Richmond Avenue, Columbus, Ohio.

“Q. I will ask you to state whether you are a taxpayer of the state of Ohio of the County of Franklin and the state of Ohio? A. Yes, sir, I am.”

Counsel for the Wesco Company insists that it does not appear that any portion of the cost of the improvement in question is to be paid by general taxation, but that the same is to be paid for in full out of funds arising from the gasoline tax. We do not find it necessary for the determination of this case to pass upon this question. It is possible that the court might take judicial notice of the fact that improvements of the kind' in question are wholly paid out of the state gasoline tax fund and not by taxation, but in view of the state of the record and pleadings we do not think we would be warranted in so doing.

We have had not only this question, but substantially all of the legal questions involved in the case at bar before us at one time or another for consideration. In the case of Harnett v. Edmonston, Dir. of Dept. of Industrial Relations, ante, 304, 185 N. E., 426, we were called upon to determine the right of a taxpayer to maintain a somewhat similar proceeding. The record in that case, in so far as the taxpayer’s relations are concerned, differed somewhat from the case at bar, and we held there that the “rule is well settled that a taxpayer, like any other party to a proceeding in equity,'must show that some act is about to occur which will result in some material injury to him, and for which he has no other adequate remedy.”

Upon consideration of all the questions raised by counsel for plaintiff in error, we find no error prejudicial to plaintiff in error in the judgment of the lower court, and the same will therefore be affirmed.

Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur.  