State ex rel. Shafer v. Ohio Turnpike Commission

• Court: Ohio Supreme Court
• Writing for the Court: MIDDLETON; WEYGANDT
• Citation: State ex rel. Shafer v. Ohio Turnpike Commission, 159 Ohio St. 581, 113 N.E.2d 14, 50 O.O. 465 (Ohio 1953)
• Decision Date: 03 June 1953
• Docket Number: No. 33496,33496
• Parties: , 50 O.O. 465 STATE ex rel. SHAFER v. OHIO TURNPIKE COMMISSION et al.

Page 581

159 Ohio St. 581

113 N.E.2d 14, 50 O.O. 465

STATE ex rel. SHAFER v. OHIO TURNPIKE COMMISSION et al.

No. 33496.

Supreme Court of Ohio.

June 3, 1953.

Syllabus by the Court.

1. Neither section 1205 nor any other section of the Ohio Turnpike Act, which comprises sections 1201 to 1222, inclusive, General Code, imposes upon the Ohio Turnpike Commission the duty, in the exercise of its discretion, to prepare designs, plans and specifications for a highway, which is to be constructed by it, of alternative materials or to procure bids on construction of such highway of alternative materials.

2. The Ohio Turnpike Act invests the Ohio Turnpike Commission with discretion, if acting in good faith, to determine the design, plans and specifications for a highway to be constructed by it and to determine the material of which such highway is to be constructed.

3. Mandamus will not lie to compel the Ohio Turnpike Commission to procure bids for the construction of a highway of alternative materials.

This is an action in mandamus brought in the Court of Appeals by the relator as a resident, elector and taxpayer of the state of Ohio, who manufactures roadbuilding material and who is engaged in the business of contracting for the construction, improvement and maintenance of roads and highways.

The respondents are the Ohio Turnpike Commission, which is a body corporate and politic under the laws of the state of Ohio, and three members of that commission who are, respectively, chairman, vice chairman and secretary-treasurer thereof.

Under the provisions of section 1203, General Code, said commission consists of four members, appointed by the Governor with the advice and consent of the Senate, and the Director of Highways who is a member of the commission ex officio without compensation. The fourth member of the commission and the Director of Highways are not named as individual defendants.

The petition avers in substance that the commission is authorized and empowered to construct, maintain and repair turnpike projects as defined by law and to make and enter into all contracts and agreements necessary or incidental to the performance of its duties except that, where the cost under any such contract or agreement, other than compensation for personal services, involves an expenditure of more than $1,000, the commission shall make a written contract with the lowest and best bidder after advertisement as provided by law; that the commission proposes to construct the turnpike project in question in accordance with a plan, profile and specifications involving expenditures exceeding $1,000, 'without making provisions for the receipt of bids from those who may become the lowest and best bidder or didders'; that the commission 'arbitrarily without reason and without the exercise of discretion, plans and is now preparing to limit the competition for said contracts to construct the said turnpike by inviting and limiting bids based upon only one type of road construction materials, although other types of such materials are in common and open competition each with the others and are readily available, useful and suitable for such purposes'; that as a consequence of said acts of the defendants 'the type of material to be used in the construction of said turnpike has been selected arbitrarily, without due and fair consideration and comparison among the various types suitable and available and without opportunity to learn comparative costs and merits and without the exercise of discretion as required by law'; that 'the commission by journal entry and by minutes of its meeting of September 4, 1951, has approved plans and specifications which will not permit bidding among said types of road building materials in free and open competition after advertisement for competitive bids'; that the defendants 'arbitrarily, without reason and without the exercise of discretion propose to limit the competition for said construction and materials by inviting and considering bids based on the use of one type of road construction material only'; that said material is 'scarce and difficult to get' and 'is controlled by a monopoly'; that said plans and proposals will 'result in eliminating all price competition among road construction materials'; that 'all said facts are within the knowledge of the said defendants but despite said knowledge * * * the said commission acting arbitrarily, without reason or discretion continues to proceed with the said proposals and plans'; that the defendants are acting 'pursuant to a preconceived plan among them' and with their chief engineer and their consulting engineers; and that the relator is desirous of bidding in competition.

The relator prays for a writ of mandamus 'commanding and ordering the defendants, the Turnpike Commission of Ohio, (1) to revise, amend and reform their said profile, plans and specifications to provide for alternate available and suitable types of material to be used in said construction; (2) to cause to be prepared plans for said advertisement for bids and said competition so as to make possible bidding by all qualified bidders in order that the lowest and best bidder may be determined; (3) to cause to be prepared plans and specifications so that in the selection of materials and award of contracts said commission will be able to exercise the discretion required by law by preparing plans and specifications for the receipt of bids upon alternate, available, suitable, and competitive materials for said construction.'

The answer of defendants admits the formal allegations of the petition as to the identity and character of parties and denies all other allegations.

The Court of Appeals referred the cause to a referee who conducted extended hearings and before whom was compiled a record of several thousand pages. To the report of the referee exceptions were filed. After hearing thereof, the report of the referee was approved by the Court of Appeals, two members only concurring, and a judgment was entered granting the prayer of the petition, the pertinent portion of which judgment is as follows:

'It is therefore ordered, adjudged and decreed that the respondents herein and the Ohio Turnpike Commission prepare or cause to be prepared revisions, amendments, and/or supplements to all existing plans which have been prepared for pavement sections including but not limited to plans and specifications and contract sections identified by the Ohio Turnpike Commission as Contracts C-2, C-3, C-4, C-6, C-7, C-8, C-9, C-36, C-37, and all other contracts which have been advertised for letting or purportedly let, to provide plans and specifications for the receipt of bids upon comparable designs of asphaltic concrete as well as Portland cement concrete; and upon the preparation of any new amended or supplemental plans for the construction of pavement sections of the Ohio Turnpike Project No. 1 which include a design for Portland cement concrete construction provide also for a comparable design of asphaltic concrete construction and upon the advertisement or readvertisement for the receipt of bids on any of the above provide in said advertisements or readvertisements for the receipt of bids upon said asphaltic concrete construction as well as Portland cement construction.'

Appeal was taken as a matter of right to this court.

Frank C. Dunbar, Jr., Columbus, Squire, Sanders & Dempsey, Henry J. Crawford, John Lansdale, Jr., Cleveland and L. E. Oliphant, Jr., Chicago, Ill., for appellants.

Robert Dow Hamilton, Paul A. Griffith, Columbus, and David Ralph Hertz, Cleveland, for appellee.

MIDDLETON, Judge.

Section 1205, General Code, enumerates the powers of the Ohio Turnpike Commission and provides in part:

'The commission is hereby authorized and empowered:

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'(e) To construct, maintain, repair, police and operate turnpike projects as hereinabove defined; and to establish rules and regulations for the use of any such turnpike project;

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'(k) To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this act.

'When the cost under any such contract or agreement, other than compensation for personal services, involves an expenditure of more than $1,000.00, the commission shall make a written contract with the lowest and best bidder after advertisement for not less than two consecutive weeks in a newspaper of general circulation in Franklin county, Ohio and in such other publications as the commission shall determine. Such notice shall state the general character of the work and the general character of the materials to be furnished, the place where plans and specifications therefor may be examined, and the time and place of receiving bids.

'Each bid shall contain the full name of every person or company interested in it and shall be accompanied by a sufficient bond or certified check on a solvent bank that if the bid is accepted a contract will be entered into and the performance of its proposal secured.

'The commission may reject any and all bids.

'A bond with good and sufficient surety as shall be approved by the commission, shall be required of all contractors in an amount equal to at least 50% of the contract price, conditioned upon the faithful performance of the contract;

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'(o) To do all acts and things necessary or proper to carry out the powers expressly granted in this act.'

The relator contends that section 1205(k) requires the commission to draft plans and specifications for use of alternative, available and suitable types of paving material. The admitted objective of relator is to force the commission to permit relator to submit bids for construction with asphaltic concrete which he manufactures. The commission on September 4, 1951, approved and adopted designs, plans and specifications for construction, calling for the use of Portland cement only.

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