
    Harnett et al. v. Edmonston, Dir. of Dept. of Industrial Relations, et al.
    
      (Decided February 23, 1932.)
    
      Mr. Stuart B. Bolin, for plaintiffs.
    
      Mr. Gilbert Bettman, attorney general, Mr. Isadore Topper, Messrs. Kemoorthy, Shallberg <& Harper, and Messrs. Hamilton & Kramer, for defendants.
   Kttnkle, J.

This case comes into this court on appeal from the judgment of the court of common pleas. It was heard upon the testimony taken in the lower court, together with considerable additional testimony taken in this court.

The plaintiff, L. D. Harnett, in his petition, in brief, seeks to restrain the defendants T. A. Edmonston and Edgar W. Brill, as officials, from approving any plans which contemplate the installation, or authorize or permit the installation, of the so-called “Hernelco System” of heating and ventilation in any public school building now being or intended to be constructed in the state of Ohio, and asks that such officers be ordered to rescind and annul all the unlawful orders and approval of plans and permits specified in the petition.

The plaintiff says he is now and has been for a long time prior to any of the times hereinafter mentioned a citizen and taxpayer of the state of Ohio, and of the city of Bexley, in the county of Franklin in the state of Ohio; that he is the president of the Buckeye Blower Company, a corporation having its office and factory in the city of Columbus, Franklin county, Ohio, which company manufactures, sells and distributes unit heaters and heating and ventilating systems; and that a large part of the product of said the Buckeye Blower Company, and of all other companies which manufacture, sell and distribute heating and ventilating systems within the state of Ohio are intended for installation in schools and other public buildings in said state, and are sold in competition with each other, especially with the so-called system of heating and ventilation known as the Hernelco System.

Plaintiff says that he represents not only himself as an individual taxpayer, but is also president of said the Buckeye Blower Company, and that he brings this action as a taxpayer on behalf of himself and all other persons similarly situated, and also on behalf of himself, as president of the Buckeye Blower Company, and on behalf of all other persons, firms and corporations similarly situated as manufacturers, sellers and distributors of heating and ventilating systems; that the defendant T. A. Edmonston is the duly appointed, qualified and acting director of the Department of Industrial Relations of the state of Ohio; that the defendant Edgar W. Brill is the duly appointed, qualified and acting chief of the division of factory inspection of the said Department of Industrial Relations, and as such chief is under the direction and control of defendant Edmonston; that said Brill, by virtue of such appointment, is also chief inspector of workshops and factories and chief of the division of workshops, factories and public buildings, and as such officer it is his duty to enforce the provisions of the statutes of Ohio relating to the construction and erection of all public buildings. The further duties of the said Edmonston and Brill are set forth in detail in the petition.

The action of the state board of building standards in approving the Hernelco System for a school building in Cleveland, and the approval of plans for the Martin School, Adams township, Lucas county, Ohio, in which plans it was provided that the system of heating and ventilating known as the Hernelco System might be used, and the approval of said system for a certain school building in Mahoning county, are set forth in detail in the petition.

The answer of the defendants consists of a general denial and an admission that defendants did approve plans and specifications for the erection and construction of the several school buildings set forth in the petition, and that the said plans and specifications, among other heating and ventilating equipment, included a product manufactured and known as the Hernelco Ventilator.

An issue was thus joined by the pleadings.

The plaintiff brings this suit as a taxpayer, and also brings the suit as the president of the Buckeye Blower Company, a company engaged in the manufacture of ventilating appliances in competition with the Hernelco System. He also states in his petition that he brings the suit in behalf of all others similarly situated. The averments of the petition clearly show the capacities in which plaintiff sues. The third paragraph of the second page of the petition sets forth clearly that he is suing as an individual taxpayer and as president of the Buckeye Blower Company, and that the suit is brought upon behalf of himself and all others similarly situated.

The general denial in the answer relates to all the averments of the petition except those which are specifically admitted, and the averment in reference to his capacity to sue was not admitted. However broad the plaintiff may have made the averments of his petition as to the capacity in which he sues, it must be conceded that his right to bring this proceeding is narrowed down to his capacity to sue as president of the Buckeye Blower Company, a rival concern.

As above stated, the case is here on appeal, and considerable additional testimony was heard in this court.

In the lower court the plaintiff testified that he owned certain property in Franklin county and was a taxpayer in Franklin county, Ohio:

“Q. What position, if any, do you occupy with the Buckeye Blower Company of this city? A. President.

“Q. Are you a stockholder of that corporation? A. I have to be to be on the Board of Directors.”

The above constitutes the record in the lower court, in so far as it relates to the capacity of the plaintiff.

In the hearing of the case in this court, as shown by the record, the following questions were asked:

“Q. You are no longer the president of that corporation? A. No.

‘ ‘ Q. Have you any affiliations with that company at the present time? A. No.”

He then testified as to the ownership of certain property in Bexley and the city of Columbus, part of which was in the joint names of himself and his wife, and part in his name.

“Q. Do you own any property in Martin Township, Lucas County, Ohio? A. No.

“Q. Do you own any property in Mahoning County? A. No.”

He further testified that he did not know who now owned the controlling interest in the Buckeye Blower Company.

The plaintiff’s answers to certain questions in this court clearly dispose of the case in so far as it relates to his presidency of the Buckeye Blower Company. Whether he is or is not even a stockholder in the Buckeye Blower Company does not appear. In the trial in the lower court his answer was that he would have to be a stockholder in order to be on the board of directors. His answer in our court was: “Q. Have you any affiliations with that company at the present time? A. No.”

In view of the general denial, the burden is upon the plaintiff to establish his legal capacity to sue, and he clearly removes the one capacity in which he was siring, namely, as president of the Buckeye Blower Company, and makes no claim in the petition that he is suing as a stockholder of the Buckeye Blower Company, and in the state of the record we could not determine the same in favor of plaintiff in error.

The other capacity in which he sues is that of a taxpayer. The record clearly shows that the plaintiff is not a taxpayer in any of the counties in which the defendants have permitted the Hernelco System to come in competition with the company formerly represented by the plaintiff as president and other competing companies. It will be noted in passing that neither of the defendants let contracts for school buildings. The contracts are let by the local boards of education.

From a consideration of the record and the authorities, we are of opinion that the plaintiff is without authority to maintain this action. The defendants have never approved, in so far as the record discloses, nor have they ever been called upon to approve the Hernelco System, for any school building in Franklin county, in which the plaintiff is a taxpayer. He concedes that he owns no property in any of the other counties referred to in the petition, and in which the defendants have merely approved the receiving of bids upon the Hernelco System. The acceptance or rejection of such bids, after being received, rests wholly in the discretion of the local boards of education.

We think 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.

Counsel for plaintiff calls our attention to the case of Meeker v. Scudder, 108 Ohio State at page 423, 140 N. E., 627. We have examined this case, but think the case at bar is clearly distinguishable therefrom. It may be observed in passing that, before the plaintiff is entitled to relief in any capacity in which he may sue, it must appear that he has been, or will in some way be, injured or damaged, and from the state of the record, even if he were still the president of the Buckeye Blower Company, or otherwise interested therein, we would not be prepared to say that any of the localities referred to in the petition would have accepted the proposition of the Buckeye Blower Company, even if the Hernelco System had not been in competition.

Whenever some locality sees fit to accept a bid of the Hernelco System for the installation of its heating and ventilating system, and is about to enter into a contract with such company for such installation, it will then be ample time for some competing company such as the Buckeye Blower Company, or any other interested company, to raise the question of the constitutionality of the law in some court having jurisdiction over such contract.

From an examination of the authorities and an application of the facts as set forth in the record, we are of opinion that the plaintiff is without legal capacity to sue. It therefore becomes unimportant to discuss the many other very interesting questions suggested by counsel.

The petition of the plaintiff will be dismissed.

Petition dismissed.

Alltcead, P. J., and Hornbeck, J., concur.  