Summary
addressing injunctive relief under R.C. 309.13 rather than laches
Summary of this case from State ex rel. Doran v. Preble Cnty. Bd. of Comm'rsOpinion
No. 39379
Decided January 5, 1966.
Public contracts — Erection, alteration or repair of county bridge — Competitive bidding — Section 153.31 et seq., Revised Code — Requirements mandatory — Noncompliance renders contract void.
The requirements for competitive bidding on contracts for the erection, alteration or repair of county bridges by private contract, set forth in Section 153.31 et seq., Revised Code, are mandatory, and a contract made without compliance with such sections is void. ( Buchanan Bridge Co. v. Campbell et al., Commrs., 60 Ohio St. 406, approved and followed.)
CERTIFIED by the Court of Appeals for Athens County.
A taxpayer's action to enjoin the illegal expenditure of public funds was brought against defendants Athens County officials and defendant The Ohio Bridge Corporation. The plaintiff complains that purchase orders for the construction of one bridge and the repair of another, at a total price of $60,556, have been issued by the county engineer without complying with the requirements of Sections 153.31 to 153.60 of the Revised Code of Ohio. It is alleged that the purchase orders pursuant to which the one bridge was furnished in place and the other was repaired were executed by the county engineer by virtue of a resolution of the county commissioners authorizing the county engineer to construct and improve bridges by "force account" under authority of Section 5543.19 of the Revised Code.
It is alleged that the purchase orders were invalid for the additional reason that no certificate of availability of funds was attached as required by Section 5705.41, Revised Code.
Such of these facts as were not admitted by the answers were proved without substantial dispute at the trial. The answers of the defendants asserted that the contracts had been completed before the plaintiff's petition was filed, and the corporate defendant asserted that the plaintiff, with knowledge of all the facts, having failed to seek injunction earlier was guilty of laches.
The trial court found that the procedure followed in building the bridge, although apparently one which has developed by a long-standing practice in many of the political subdivisions of the state, was not justified by law. The trial court found further that the failure to attach the certificate of availability of funds was an additional defect invalidating the contract. The court proceeded to restrain permanently the payment of the agreed price or any sum for the construction or repair of the bridge.
An appeal on questions of law and fact was perfected. The parties complied with Rule V of the Court of Appeals, stipulating that they would rely in that court upon the evidence submitted below. A transcript of that evidence certified as a bill of exceptions was filed, and the cause was submitted to the Court of Appeals. After submission, a unanimous Court of Appeals decided and by its written opinion ( 1 Ohio App.2d 342) pronounced as follows:
1. That since it had held in Buckeye Union Casualty Co. v. Braden, 116 Ohio App. 348, that there was no longer a constitutional basis for law and fact appeals the court must of its own motion reduce the appeal to one on questions of law only and consider the arguments of law in the appellants' brief as though addressed to appropriate assignments of error.
2. That the trial court had authority to enjoin payment of any sums, since the defense of laches is not available in taxpayers' suits because of the involved public interest.
3. That the applications for permission to pay for the completed and satisfactory work would, if granted, amount to an abrogation of the strict requirements of Section 153.31 et seq., Revised Code.
4. That the failure to attach a certificate of availability of funds as required by Section 5705.41, Revised Code, voided any agreement and made payment illegal.
5. That the failure to comply with the requirements that plans, specifications and material requirement lists be prepared and filed, invitations for bids advertised and contracts let to the lowest bidder, as required by Section 153.31 et seq., Revised Code, voided the purchase orders and made payment thereunder illegal.
6. That the provision of Section 5543.19, Revised Code, permitting the county engineer when authorized by resolution of the county commissioners to proceed to employ laborers, lease implements and tools and purchase such materials as are necessary in the construction, improvement and repair of bridges by force account does not provide an additional method of entering into contracts to have such work done by private contract so as to avoid the requirements of Section 153.01 et seq., Revised Code, and a purchase order purportedly issued pursuant to such procedure is void and payment pursuant to such order may be enjoined.
The Court of Appeals affirmed the judgment of the trial court and, finding its judgment reducing the appeal on questions of law and fact to one on questions of law only to be in conflict with the judgment of the Court of Appeals of the Eighth Appellate District in Weiss v. Kearns, 117 Ohio App. 393, certified the record of the case to this court for review and final determination.
Messrs. Knepper, White, Richards Miller, Mr. John A. Jenkins, Mr. Donald A. Davies, Mr. Hugh A. Sherer, Messrs. Rowland, Bridgewater Gray and Mr. Hal H. Rowland, for appellee.
Mr. Homer B. Gall, Jr., prosecuting attorney, Mr. Samuel B. Erskine, Messrs. Porter, Stanley, Treffinger Platt, Mr. J. Ralston Werum, Mr. Michael D. Rose and Mr. Lawrence D. Stanley, for appellants.
The judgment below dismissing the appeal on questions of law and fact and retaining it on questions of law cannot be prejudicial since only questions of law arose in the Court of Appeals. We are unable to see any question of fact material at any stage of these proceedings which was disputed in the courts below. Nor was any additional material evidence proffered and excluded in the Court of Appeals.
There is no reason for a Court of Appeals to certify its judgment as conflicting with that of another Court of Appeals where, as here, the point upon which conflict exists had no arguable effect upon the judgment of the certifying court. See Sprung, Admx., v. E.I. Du Pont De Nemours Co., 30 Ohio Law Abs. 278, appeal dismissed, 136 Ohio St. 94. Questions certified should have actually arisen and should be necessarily involved in the court's ruling or decision. 5 American Jurisprudence 2d 448 et seq., Appeal and Error, Section 1025 et seq.
Although Section 6, Article IV of the Constitution, requires this court to review and finally determine cases in which the record has been certified for the reason that the judgment rendered is in conflict with the judgment pronounced upon the same question by another Court of Appeals, this court is not required to resolve immaterial conflicts and will not do so in this case. The certification, however, does require this court to hear and "finally determine" the cause.
We therefore observe that appellants' real complaint is that under facts which are substantially undisputed the judgment is contrary to law. Section 153.31 et seq., Revised Code, state the requirements having to do with preparation, filing and publication of plans, specifications and material lists, as well as the procedure for inviting bids and letting contracts for erecting, altering and repairing bridges by private contract.
A specific exception to this procedure is Section 153.42, Revised Code, which authorizes a private contract without publication or notice when the estimated cost does not exceed $1,000.
The contract here involved was for the erection, alteration and repair of county bridges at a cost of more than $1,000. The contract was a private contract proscribed by Section 153.42, Revised Code, and not let to the lowest bidder as required by Section 153.43, Revised Code, after notice required by Section 153.40, Revised Code.
It is apparent that Sections 153.31 to 153.60, Revised Code, were in no way followed and cannot be authority for the legality of this contract. Instead, the county officers and the corporate defendant propose that they have proceeded in this matter under authority of Section 5543.19, Revised Code, which provides:
"The county engineer may, when authorized by the Board of County Commissioners, employ such laborers and teams, lease such implements and tools, and purchase such materials as are necessary in the construction, reconstruction, improvement, maintenance, or repair of roads, bridges, and culverts, by force account."
We observe, however, that the bridge was not constructed by the county engineer with labor employed by him, with materials purchased by him and with equipment owned or leased by him, but was built by The Ohio Bridge Corporation entirely with labor employed and paid by it, with material purchased by it and with equipment owned or leased by it. We observe further that this procedure does not arguably amount to that prescribed by the above-recited section.
The trial and appellate courts, applying the applicable law to the undisputed facts, have taken a position that is logically irrefutable.
The issuance of the purchase orders was not authorized by any statute, and no contract authorizing the expenditure of public funds resulted. Buchanan Bridge Co. v. Campbell et al., Commrs., 60 Ohio St. 406.
Section 5705.41, Revised Code, declares void every contract or order involving the expenditure of money by a subdivision or taxing unit unless there is an attached certificate that the amount appropriated is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances.
If the language of that statute needed construction, it has been construed in State v. Kuhner, 107 Ohio St. 406.
Section 309.13, Revised Code, authorizes the injunction issued in this case and under these circumstances by the courts below at the instance of the appellee, and that statute does not limit the granting of such injunctions to cases in which the petition preceded the completion of the contract. The section contemplates an injunction after completion of the contract and before payment. Again, the affirmative language of an unambiguous statute prevents the defendants from successfully claiming that a delay in filing suit prevents the plaintiff from obtaining the relief prayed for. This statute which specifically directs action to prevent payment on illegal public contracts makes untenable the position taken by the defendants that payment can be made on a basis of moral obligation.
The judgment below is, therefore, affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.