186 F. 678 | 6th Cir. | 1911
(after stating the facts as above).
The question presented is one of local law, and must be decided with reference to the well-pleaded facts, the statute involved, and the construction, if any, given to it by the state’s highest tribunal. If the bidder has an enforceable right, this court may afford him relief.
The bill alleges that the specifications did not call for an oil containing the largest amount of anthracene and anthracene oil, or any of either. The dead oil of coal tar is commonly called “creosote,” and is extensively used as a preservative in the ^treatment of wood block for paving'. It had previously been specified for such purpose in public lettings in Cincinnati. State v. Miller, 10 Ohio Cir. Ct. R. (N. S.) 406. In that case the complainant was a party, and, having regard to the difference in registering degrees of temperature on the Centigrade and Fahrenheit thermometers, the specifications as to the character of oil there under consideration were substantially the same as in this case.
Considering the bill in the light of the well-known facts disclosed by science, it first recites that the specifications call for an oil necessarily possessing certain constituents, and then subsequently denies that the specifications require the presence of those constituents in such oil. The denial must be ignored, because a demurrer does not admit allegations which are impossible or which the law adjudges to be untrue. 6 Ency. PI. & Pr. 338. Disregarding, therefore, the statement that the specifications did not require that the oil submitted as a sample and to be used in preparing the wood block for the construction of the improvement should contain anthracene and anthracene oil, the averment is that the complainant complied in all respects with the requirements and conditions of the specifications in that the sample of oil submitted by it with its bid contained large and substantial amounts of those ingredients, but that the specifications did not require that such oil of tar should contain the largest amount of them. But to say that the sample submitted contained large and substantial amounts is not the same as saying that those are the amounts necessary to meet the test which the director reserved the right to make and for which the specifications called.
The first paragraph' of the syllabus in State v. Board is as follows:
"By section 1536 — 679, Revised Statutes, pertaining to tlie letting of contracts for street improvements, discretion is given a board of public service to reject; any and all bids, and this discretion will not be interfered with by mandamus where such discretion has not boon abused and no vested right of any bidder is involved.”
The complainant insists that the logical inference to be drawn from that paragraph is that the discretion given to reject any and all bids will be interfered with by the courts whenever such discretion has been abused. But the syllabus must be considered in connection with the opinion and in the light of the issues and facts of the case. Booco v. Mansfield, 66 Ohio St. 121, 135, 64 N. E. 115. The language of the opinion is clear that the discretion with which a court will interfere is a discretion exercised with a fraudulent intent to the injury of the party complaining, and that injury must be to a vested right. There is no charge in this case of a fraudulent intent. What the bill alleges after admitting that the samples of oil submitted by bidders were tested is that the finding against the complainant and in favor of Henkel & Bro. is untrue and not based on analyses or tests of submitted samples, or on the requirements, conditions and provisions of the specifications, and that the director’s action was arbitrary, in contravention of law and the specifications, and a violation and abuse of the corporate powers of the city and of his lawful discretion. Moreover, the complainant did not acquire and does not have a vested right.
The statutes of Ohio amply provide for the protection of taxpayers. The city solicitor is required by section 4311, General Code, to apply in the name of the corporation to a court of competent jurisdiction for an injunction to restrain the misapplication of its funds, the abuse of its corporate powers, or the execution or performance of any contract made in its behalf in contravention of the laws and ordinances governing it, or which was procured by fraud or corruption. Should he fail, upon the written request of a taxpayer of the corporation, to make such application, then such taxpayers may, under the provisions of section 4314, institute suit or proceedings for such purpose in his own name on behalf of the corporation. But cases brought, like this, by a defeated bidder, are not to be confused with those brought by a taxpayer under the foregoing statutory provisions. The one has no
Boren & Guckes v. Commissioners of Darke County, 21 Ohio St. 311, and State v. Commissioners, 39 Ohio St. 188, are not controlling, or helpful to complainant. They were decided under a statute which required the award to be made to the lowest bidder who would give a good and sufficient bond to the acceptance of the commissioners. In each of them the rule was announced that the commissioners were clothed with a discretion, to be exercised in a reasonable and proper manner, as to the acceptance of ,a bond, but as to awarding the contract to the lowest bidder their acts were purely ministerial. The utterance in the closing paragraph of the last-named case, on which complainant lays stress, is a dictum, irreconcilable with the preceding portions of the opinion, and in conflict with the rulings made in the later cases of Ohio v. Hermann and State v. Board. It is significant that the case has never been cited by the Supreme Court.
It follows from the foregoing that the bill is wanting in equity, and does not state such a cause as entitles the complainant to relief, and to thatfextent the demurrers are sustained. No ruling is made on the demurrer for misjoinder of parties.
The lower court is affirmed.