State ex rel. Fleisher Eng'g & Constr. Co. v. State Office Bldg. Comm'n

• Court: United States State Supreme Court of Ohio
• Citation: 174 N.E. 8,123 Ohio St. 70
• Decision Date: 19 November 1930
• Docket Number: No. 22545.,22545.
• Parties: STATE ex rel. FLEISHER ENGINEERING & CONSTRUCTION CO. v. STATE OFFICE BUILDING COMMISSION et al.

123 Ohio St. 70
174 N.E. 8

STATE ex rel. FLEISHER ENGINEERING & CONSTRUCTION CO.
v.
STATE OFFICE BUILDING COMMISSION et al.

No. 22545.

Supreme Court of Ohio.

Nov. 19, 1930.

Mandamus by the State, on the relation of the Fleisher Engineering & Construction Company, against the State Office Building Commission and others.-[By Editorial Staff.]

Writ denied.

This is an action in mandamus instituted in this court by the Fleisher Engineering & Construction Company. In its petition, filed September 15, 1930, it represents that it was one of the bidders, which, in response to the notice published by the state office building commission, filed sealed proposal for the construction of the state office building, and that its bid was substantially less than any other of the eighteen bids filed and tabulated by the state office building commission, its proposal being in the aggregate sum of $2,281,700; that therewith it filed a bond in the form approved by the state office building commission, with sufficient sureties, in the total sum of $2,000,000. It further represents that it has been advised by the state office building commission that its proposal is not being considered by said commission, and will not be considered by said commission, although it has offered to furnish a bond in the form required by said state office building commission in a sum equal to its proposal, and that it is able, ready, and willing to give an additional bond, which, with the bond on file, will aggregate the sum of $2,281,700.

The relator seeks a peremptory writ of mandamus compelling the state office building commission to consider said proposal of the relator.

The respondents, by answer, set up two defenses; the first being a general denial, after admitting, however, substantially all the material averments of the petition. In its second defense the respondents aver that it advertised for and received proposals substantially as set forth in the petition, and that on September 22, 1930, an award was made for the construction of said building. It further avers that in making said award the proposal filed by the relator was not considered for the reason that it was not accompanied by a proper bond in a sum equal to the total sum named in the proposal of the relator.

Issue was made by demurrer filed by the relator to the respondents' answer.

Syllabus by the Court.

[Ohio St. 70]The presumption against the repeal of statutes by implication is stronger where provisions claimed to be in conflict were passed at nearly the same time.

Section 2319, General Code, regulating the filing of proposals and the awarding of a contract for the erection of a building for the use of the state, has not been repealed by implication, and is in full force and effect.

The requirement of that section that ‘A proposal shall be invalid and not considered unless a bond, * * * in a sum equal to the total sum of the proposal, is filed with such proposal,’ is mandatory, and the state office building commission will not be compelled by mandamus to consider a proposal which did not comply with that requirement.

[Ohio St. 72]Ervin & O'Donnell, of Columbus,...