State ex rel. Riley Const. Co. v. East Liverpool City School Dist. Bd. of Ed., 40587

• Decision Date: 29 March 1967
• Docket Number: No. 40587,40587
• Citation: 10 Ohio St.2d 25,225 N.E.2d 246,39 O.O.2d 15
• Parties: , 39 O.O.2d 15 The STATE ex rel. RILEY CONSTRUCTION CO. v. EAST LIVERPOOL CITY SCHOOL DISTRICT BOARD OF EDUCATION et al.
• Court: Ohio Supreme Court

Page 25

10 Ohio St.2d 25

225 N.E.2d 246, 39 O.O.2d 15

The STATE ex rel. RILEY CONSTRUCTION CO. v. EAST LIVERPOOL CITY SCHOOL DISTRICT BOARD OF EDUCATION et al.

No. 40587.

Supreme Court of Ohio.

March 29, 1967.

Syllabus by the Court

1. An action in mandamus, seeking appropriate relief, may be instituted and maintained in the Supreme Court of Ohio, where time and costs incident to a building program are controlling and make other remedies inadequate and where the situs of the controversy is in a county of the state other than Franklin and a party to the action who should be joined therein is a state official located and performing his duties in Franklin County.

2. A required performance bond accompanying a contractor's bid for the construction of a public building or buildings executed by an agent in an amount beyond his authority at the time of execution does not affect the validity of the bond and bid, where the bond is made good and sufficient by appropriate action of the responsible principal before the bid is opened and thereupon becomes operative. (State ex rel. Fleisher Engineering & Construction Co. v. State Office Building Commission, 123 Ohio St. 70, 174 N.E. 8, distinguished.)

This action in mandamus was instituted in this court with the Riley Construction Company, an Ohio corporation having its principal office in the city of Salem, as relator and the East Liverpool City School District Board of Education and Martin W. Essex, Superinfendent of Public Instruction of the State of Ohio, located in the city of Columbus, as respondents.

Material allegations of the petition are as follows:

The respondent board, acting for itself and for the superintendent, advertised in a newspaper of general circulation in the city of East Liverpool in August and September of 1966 forbids for the construction of two school buildings in East Liverpool pursuant to Section 3318.10, Revised Code, a portion of which reads:

'A proposal shall be invalid and not considered unless a bond, in the form approved by the state board of education, with sufficient sureties, in a sum equal to the total sum of the proposal, is filed with such proposal, nor unless such proposal and bond are filed in one sealed envelope.

'* * * the contract * * * shall be awarded by the school district board to the lowest responsible bidder subject to the approval of the superintendent of public instruction. * * *'

The advertisement for bids recited in part:

'Each bid shall be accompanied by a bid and performance bond in an amount equal to the total sum of the proposal including all add alternates, supported by a power of attorney for the bonding agent * * *. A proposal shall be invalid and not considered unless a bond in the form approved by the Ohio State Board of Education, with sufficient sureties, in an amount equal to the total sum of the proposal including all add alternates, is filed with such proposal, nor unless such proposal and bond are filed in one sealed envelope.'

Pursuant to the advertisement, two bids were submitted, one by Gabriel Modany in the amount of $770,000, and one by relator in the amount of $780,000, both within the amount of the revised estimate made by the respondent superintendent. The Modany bid was accompanied by a purported performance bond in the sum of $850,000 executed for the Hartford Accident and Indemnity Company, authorized to do business in Ohio, by its agent whose right under a power of attorney limited his authority to execute bonds in penalties not exceeding $500,000. Relator's bid and accompanying bond were in strict compliance with statutory requirements and the newspaper advertisement for bids. At the time the bids were opened on September 28, 1966, a representative of the respondent superintendent was present in East Liverpool with representatives of the respondent board, and relator was informed that it was the successful bidder.

Several days after the bids were opened Hartford Accident and Indemnity Company issued and sent a new power of attorney to its agent giving him unlimited authority to execute performance bonds. Thereafter respondent board, by resolution, accepted the Modany bid.

Relator alleges further that it has requested that it be declared the successful bidder and that it be awarded the contract for the construction of the two school buildings; that relator has no other adequate remedy other than mandamus; and that it will be irreparably prejudiced if respondents persist in approving and accepting the Modany bid.

The prayer of the petition is 'for a writ of mandamus requiring respondents (1) to reject the bid of Gabriel Modany, (2) exercise their discretion as to whether or not to accept the bid of Riley Construction Company and enter into a contract with Riley Construction Company to build said two buildings.' Then follows a general prayer 'for such other and further relief to which it (relator) may be entitled under the circumstances.'

Separate answers were filed by the board and by the superintendent. Both admit many of the allegations of the petition, contain general denials and challenge relator's right to a writ of mandamus. Relator's reply ends the pleadings.

Submission of the cause is upon the pleadings and a stipulation of facts.

Fitch & Kendall and Alfred L. Fitch, Salem, for relator.

Joseph W. C. Cooper, East Liverpool, William B. Saxbe, Atty. Gen., and Robert D. Macklin, Columbus, for respondents.

ZIMMERMAN, Judge.

We think that the remedy of mandamus chosen by relator is properly assertible in this court because of the lack of an adequate remedy in the ordinary course of the law. Time and costs may sometimes be controlling, and, where a school building program, for instance, must be completed promptly with the expenditure of a limited amount of money, this court will entertain an original action in mandamus rather than relegate the parties to the Court of Common Pleas with the delays incident to a determination there and subsequent appeals. Moreover, the situs of the controversy is Columbiana County, in which the city of East Liverpool is situated, and the Superintendent of Public Instruction is located in Franklin County. Under the provisions of Chapter 3318, Revised Code, the superintendent is at least a proper and perhaps a necessary party, and joinder of the board and the superintendent should be made for a complete determination of the action. The Supreme Court with its statewide jurisdiction is the forum where joinder can be made with service of summons on both respondents. Compare State ex rel. Barber, Pros. Atty., v. Rhodes, Aud., 165 Ohio St. 414, 136 N.E.2d 60. Besides, the propriety of the mandamus action in this court is not questioned. The cases of State ex rel. Central Service Station, Inc., v. Masheter, Dir. of Hwys., 7 Ohio St.2d 1, 218 N.E.2d 177, and State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428, are without application in a situation of the kind presented by the instant case.

It is shown by exhibits attached to the stipulation of facts and made a part thereof that following inquiry by the Chief of the Building Section, Department of Education, he received a telegram date October 14, 1966, and signed by...