State ex rel. Horvitz Co. v. Sours

• Citation: 142 Ohio St. 591,53 N.E.2d 498
• Decision Date: 01 March 1944
• Docket Number: 29805.
• Parties: STATE ex rel. HORVITZ CO. v. SOURS, Director of Highways.
• Court: United States State Supreme Court of Ohio

53 N.E.2d 498

142 Ohio St. 591

STATE ex rel. HORVITZ CO. v. SOURS, Director of Highways.

No. 29805.

Supreme Court of Ohio

March 1, 1944

Relator filed in this court a petition for a writ of mandamus commanding the respondent Director of Highways to act upon relator's application for qualification to submit bids as a contractor for the performance of state highway contracts. The respondent interposed a general demurrer.

Summarized the petition alleges that on or about August 21, 1943 relator filed an application to be qualified as such contractor; that, under date of August 27, 1943, a Department of Highways employee, bearing the title of credit examiner and purporting to act upon the application, issued a certificate of qualification authorizing relator 'to bid at any State Highway Letting until the uncompleted work under contract at any one time does not exceed in the aggregate of $3,000,000' for general contracting and railroad work which certificate purported to expire on March 1, 1944; that respondent had not acted upon the application although more than ten days had elapsed after it was presented to him; that realtor on October 5, 1943, in writing demanded that respondent as director personally act upon the application in the exercise of his personal discretion and on October 22 1943, the respondent in writing refused so to do; that the certificate is not the certificate of the respondent and he has at no time assumed responsibility as director aforementioned therefor; that because of the acts of the credit examiner the respondent refuses to act upon relator's application, the respondent claiming he had delegated to the credit examiner the discretionary powers and duties of the Director of Highways in the premises; and that relator desires to qualify to submit bids for the performance of contracts which the director may propose to let and is without other adequate remedy to require the director to exercise his discretion on relator's application and to issue or refuse to issue a certificate of qualification thereon.

By agreement of counsel during oral argument a copy of the certificate of qualification was introduced to be considered as incorporated in or as an exhibit attached to the petition. The certificate bears a rubber stamped signature of the respondent, followed by his title 'Highway Director' and the typewritten name of the credit examiner, with his title underneath.

David Ralph Hertz,...