
    (Eighth Circuit—Cuyahoga County, O, Circuit Court
    Jan’y Term, 1894.)
    Before Baldwin, Caldwell and Hale, JJ.
    Lake Shore Foundry, a Corporation, etc. v. The City of Cleveland and John H, Farley, Director of Public Works.
    1. When a city advertises for bids for water-pipe, and accepts a bid claimed to be invalid as not in conformity to the advertisement, the next lowest bidder may bring suit for injunction, without request under Revised Statutes, sec. 1778, to the city solicitor to bring it.
    2. When the advertisement, and specifications referred to in it, ask only for bids for new pipe, a bid for second-hand pipe cannot be accepted.
    3. The city cannot waive conditions materially affecting-the price, which right of waiver is not reserved by the City, and of which no notice is given beforehand.
    On application for temporary injunction.
    The City of Cleveland, by its Director of Public Works, wishing to purchase cast iron water-pipe exceeding $5,000.00 in value, on the 19th day of January, 1894, advertised for sealed proposals to be received February 16, 1894, “ for furnishing and delivering such cast-iron water-pipe and special castings as may be required by the water works division of the department of Public Works of the City of Cleveland.”
    In the advertisement reference was made for plans and specifications to the office of the superintendent of the water works. The City reserved the right to reject any or all bids, or to award a contract for a part.
    Plaintiff bid $21.45 per ton for the pipe, and $45.00 per ton for special castings. The specifications referred to provided for the manufacture of the pipe as follows : “ The metals of the said castings shall be poured from re-melted pigs of what is commercially known-as ‘Neutral’ pig-iron, as shall give uniform granulation in the separate and several sizes of castings acceptable to the Director of Public Works.” “All plain pipe shall be cast in dry sand moulds or flasks vertically. All pipes over twelve inches diameter to be cast hub-end down.” “The founders may be required at any time to furnish for inspection test bars cast from the molten metal from which the pipe is being made. These bars shall be 26 inches long, 2 inches wide, and 1 inch thick, cast as near as possible to the dimensions here given. These bars shall be tested for transverse strength when loaded in the center two feet between supports, narrow side vertical, and shall carry a center breaking load of not less than 1900 pounds, and shall show a deflection of, or not less than, 25-100 of an inch before breaking.” “The weight of each pipe must correspond as nearly as possible to the standard given. Any pipe or special which may fall short over 3 per cent, of the standard weight shall be rejected, and no pipe shall be allowed or paid for that shall exceed 3 per cent, of the standard weight.”
    James E. Clow & Son, of Chicago, offered a bid ranging from $17.50 to $19.50 for second-hand pipe, modifying the ¡specification in their bid as follows :
    “The pipe we tender you has been in the ground at the World’s Fair, Jackson Park, Chicago, Illinois, about one year. It is in perfect condition. Governed by your specifications we will heat and retar the pipe, making it new to all intents, and under your supervision test to your satisfaction and approval. The weight of the small sizes is considerably in excess of your requirements. We will, however, furnish these pipes at your specified weight, assuming ourselves the loss from overweight.”
    This last bid was accepted, plaintiff’s next higher bid was rejected, and plaintiff asks an injunction against the execution and performance of the contract. The case was heard on an application for temporary injunction.
   By the Court.

It is objected in this case that the plaintiff has no standing to make this contest; that under Rev. Stat., section 1778, he should ask the city solicitor to bring this suit, and can only do it himself on being refused. That section applies to a tax payers’ right to bring a suit to protect the public interest, and not to this ease where the plaintiff has this personal interest in this controversy that he claims to be the lowest bidder, to whom this contract should be awarded, if to any one. In 21 Ohio St. 324, the court says : “ In no other manner can the right of bidders and the manifest policy of the statute in relation to the public interest be adequately secured and conferred” ; and in 18 Ohio St. 390, it is plainly stated that an injunction is a proper remedy. As a taxpayer without any special interest he could only sue under Revised Statutes, section 1778.

The obvious purpose of the statute, 88 Ohio Laws. 105, sections 75 and 76, is to invite competition in the purchase of material by the city. This competition is obtained by requiring all bidders to name a price for which the specific article designated will be furnished. It is then easy to determine the lowest and best bid for furnishing the same material.

It is manifest that there is a marked difference between the commercial value of new and second-hand water-pipe. The specifications plainly contemplate that the pipe is to be new, and so manufactured as to be inspected during the process of manufacture. The bid of Clow & Son proposes to furnish second-hand pipe. Under specifications calling for new pipe, a bid received for furnishing second-hand pipe is without any competition with others of the same class, and should be excluded as not conforming to the specifications.

Burke & Ingersoll, for plaintiff in error.

Lawrence, Estep, Weh & Henry, for defendant in error.

If the City will waive conditions materially affecting the price, that fact should be known before the bids are made, and should appear in the advertisement or specifications. Authorities are cited showing that certain formal defects in bids may be waived. This waiver of formal defects does not apply to changes in the requirements of the advertisement and specifications so material as to materially affect the price. The temporary injunction will be granted.  