Opinion
No. 37077
Decided July 5, 1961.
Mandamus — Not available where adequate remedy by injunction — Municipal corporations — Awarding contract for construction of sewer — Discretion of city officials.
IN MANDAMUS.
By this action in mandamus, brought originally in this court, the relator, a foreign corporation authorized to do business in Ohio, seeks a writ to require the respondents to rescind their action in awarding a sewer construction contract to another bidder and to award it to relator, the alleged lowest and best bidder. No fraud, collusion, or bad faith is alleged, but relator does allege abuse of discretion on the part of respondents in not awarding the contract to relator.
The respondents have filed a motion to dismiss the petition, on the grounds, among others, that relator has an adequate remedy at law either by injunction or appeal, and that mandamus will not lie to control the exercise of discretion by respondents in awarding the contract.
Messrs. Hahn, Loeser, Keough, Freedheim Dean, Mr. George M. Austin, Mr. William A. Lowry, Mr. James A. Young and Mr. James W. Frey, for relator.
Mr. Bruce Birrell, city solicitor, for respondents.
If relator is correct in its contentions, it would have an adequate remedy in the ordinary course of the law. The motion to dismiss the petition will be treated as a demurrer. The petition failing to state a cause of action in mandamus, the demurrer is sustained, and the writ of mandamus is denied. State, ex rel. Cotleur, v. Board of Education of Cleveland Heights School District, 171 Ohio St. 335.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.