Eckerle v. Ferris
| Decision Date | 29 October 1935 |
| Docket Number | Case Number: 26692 |
| Citation | 175 Okla. 107,51 P.2d 766,1935 OK 1038 |
| Parties | ECKERLE et al. v. FERRIS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Highways--Powers and Duties of State Highway Commission--Broad Discretion Generally not to Be Interfered With by Injunction.
The State Highway Commission is created and vested with powers and duties necessary to fully and effectively carry Out all of the objects of the act creating it. That commission, while acting in the scope of its authority, is vested with a very broad discretion, with which the courts will not interfere by injunction, except in case of gross abuse of such discretion, or where it appears that the intended action of the commission is founded on fraud, corruption, improper motive, plain disregard of duty, gross abuse of power, or violation of the law.
2. Same--Designation of Material to Be Used for Finishing Coat of Highways Held not Violative of Statutory Provision for Competitive Bidding Though There Is but One Known Source of Supply of Such Material.
The State Highway Commission has authority to designate the character of hard surface material to be used for the finishing coat of highways to be constructed under contract. When the commission prescribes the use of a natural product for that purpose, and advertises for bids for road construction, the provision of the statute for competitive bidding is not necessarily violated merely because it is alleged, and admitted on demurrer, that there is but one known source of supply of such natural product.
3. Same--Making of Contract by Highway Commission not Subject to Be Enjoined by Taxpayer Merely Because Use of Different Material Would Result in Cheaper Construction.
In an action by a taxpayer to enjoin the State Highway Commission from entering into road construction contract, the making of proposed contract is not subject to being enjoined merely because of the plaintiff's allegation, taken as true on demurrer, that the use of different substances or material will result in cheaper construction.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Action by two taxpayers, Frank A. Eckerle and Silas E. Grubb, to enjoin the making of contracts on six federal aid highway construction projects by the State Highway Commission, composed of Scott Ferris et al. From a judgment sustaining a demurrer to plaintiffs' petition, the plaintiffs appeal. Affirmed.
McPherren & Maurer and Tench Tilghman, for plaintiffs in error.
Mac Q. Williamson, Atty. Gen., Houston E. Hill, L. V. Orton, Right of Way Attorney, and G. A. Paul, for defendants in error.
¶1 For the purpose of this appeal the facts in material substance are as follows: Plaintiffs are taxpayers of Oklahoma county, and the defendants are members of, and constitute the State Highway Commission.
¶2 The defendants advertised for bids on 19 miles of highway construction, being five federal aid roadway construction projects, and one federal aid roadway and bridge construction project situate in three counties of the state.
¶3 The plans and specifications provided for the construction of grade and drainage and the construction of permanent rock or gravel base for the highway: for the construction of the necessary bridges and culverts and for a wearing surface or finishing coat of rock asphalt.
¶4 As to the finishing coat of rock asphalt, the specifications provided for the use of "blended rock asphalt," requiring the use of natural sand rock asphalt and natural lime rock asphalt, and specifying by percentages the exact proportions of each to be used to constitute the required blended rock asphalt, and providing the manner of mixing of the natural product, and also providing in detail for the required bitumen content of the lime rock and of the sand rock, and requiring in each instance the use of natural products meeting these specifications, and forbidding the adding of fluxing material or hard asphalt in order to bring the bitumen content within the specified limits. The specifications further required as to the blended rock asphalt that it should be obtained from a source of supply to be approved by the engineer, and from a source of supply or deposits which for a period of at least two years had produced raw rock asphalt which had been laid in pavement, and which had given satisfactory services when blended in a general manner as provided by the specifications; that the blended rock asphalt should be prepared at a plant capable of maintaining the required uniformity of quality at the necessary rate of production; reserving the right to reject further use of any blended rock asphalt which failed to produce satisfactory results in the work, even when taken from a formerly approved source of supply, until and unless the producer should satisfy the engineer that such material would produce satisfactory results in the work. The specifications further reserved the right to reject material becoming contaminated with dirt or foreign materials, and with provisions for sampling and testing and the like.
¶5 The plaintiffs, as taxpayers, sought to enjoin the defendants from entering into contracts on these construction projects. The plaintiffs in no manner attack the action of the Highway Commission on the proposed contracts, except in so far only as refers to the traffic surface or finishing coat of rock asphalt. As to that item the plaintiffs contend that the specifications, providing in detail for the use of blended rock asphalt, are so worded as to result in requiring the use of products obtainable only at one location in the state, where two mines or pits operating together can supply the required product. The plaintiffs say that these specifications thereby wrongfully require the use of products from one specified source of supply, operating to create a monopoly and preventing competitive bidding on the material specified for the top surface of the roadway; that therefore the action of the defendants is unlawful and involves unlawful expenditures of public funds and should be enjoined, and under temporary order the defendants are forbidden to enter into any contract for the construction of any part of the roadways and bridges of the aforesaid six construction projects.
¶6 The petition, however, does show that all bidders on the construction work may purchase the material specified for the finishing coat of the roadway at the same price.
¶7 The plaintiffs do not contend that any other produces the same material, but do contend that there are producers of road building material who can, by manufacturing processes, mix sand rock, lime rock and asphalt so as to produce by manufacturing or mixing process a finishing product as good or better than the natural product required by the specifications.
¶8 To a petition presenting the above facts and contentions, in substance, the trial court sustained a demurrer upon the ground that the petition did not state facts constituting a cause of action, and the cause is regularly here on appeal from that order and judgment of the trial court. The question for our consideration is whether, upon these allegations, taken as true for the purpose of the demurrer, a cause of action is stated to enjoin the defendants. The question of the capacity of plaintiffs, as general taxpayers, to maintain this suit is not specifically attacked.
¶9 The original restraining order was issued in the trial court before the date for receiving bids, and the Highway Commission was restrained from opening bids. That order was modified by agreement to permit the Highway Commission to receive the bids and open the same, though continuing the restraint from entering into any contract. The plaintiffs had permission thereafter to amend their petition, but presented no additional facts indicating any other or further difficulties in the presenting of bids on the general construction work, and in fact elected to file no amendment to their petition. So that other than as above stated, it is not contended that there were any facts that would or did operate to chill or stifle competitive bidding on the construction work of the various projects.
¶10 It is to be noted that the petition does not in any manner purport to charge the defendants with any kind of fraud or collusion. It is merely asserted that to solicit bids and to contract upon the specification so drawn is illegal, as not properly allowing competitive bidding. The plaintiffs in their petition do refer to this as constituting or resulting in a legal fraud, but there is no attack on the motives or good faith of the commissioners.
¶11 Our statutes, as shown in chapter 50, O. S. 1931, with amendments as shown in chapter 22, S. L. 1933, and chapter 167, S. L. 1935, and chapter 50, S. L. 1935, place upon the Highway Commission the duty of constructing, controlling, and maintaining our state highways, with broad authority and power in designating the method and manner of construction, type of materials to be used, etc. That commission is authorized to construct roads, upon contracts let on competitive bidding in conjunction with the federal government, as is contemplated in these projects. That commission is also authorized to build roads upon a forced account basis, or by paid labor instead of advertising for bids and contracting for the completed construction. We have in the past constructed roads of various kinds of material, and we have constructed and prepared roads and maintained them by day labor, and by convict labor. The Highway Commission is specifically authorized to purchase machinery, supplies, and road building material, necessary to carry out the purpose of the law to construct highways. There is also authority in proper cases to take, by condemnation proceedings, deposits of road building material. In any such case in which the Highway Commission deemed it necessary to acquire any particular or designated materials or supplies, we know of no rule of law that...
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