Muskingum Common Pleas.

to the advertisement bids were to be opened, bids were opened, and the journal of the commissioners show the following resolution:

"R. C. Cochran moved and E. V. Howell seconded the motion that as Professor C. E. Sherman has designated Professor C. T. Morris to represent him in regard to the Sixth street bridge, the foregoing proposals be referred to Professor C. T. Morris for consideration. The roll being called on this motion resulted as follows: Cochran yea, Herdman yea, Howell yea; motion carried."

The journal shows that the commissioners thereafter adjourned from day to day until September 3. At this time, they had the report of their expert, Prof. C. T. Morris, on the various plans that were submitted by the bidders. The report furnished the commissioners by engineer Morris in substance states, that careful estimates have been made of the cost of the various plans, that all the bids were carefully compared and considered, and that the two lowest bids were those of Daniel B. Luten, but the report says:

"The Luten plans are in some respect indefinite and would have to be supplemented by detail drawings. The objection to the Luten bids lies in the specifications, which are not complete.

"The next lowest bid is that of R. H. Evans & Co. upon plan prepared by Edwin Thatcher. These plans need supplementing with additional detail drawings. The specifications, however, are clear and complete in every respect, except that they also specify the city of Zanesville specifications for wood block pavement. This design has one more pier in the river than the other plan, but this disadvantage is to some extent offset by the greater area of clear water way.

"The next bid, that of the J. A. Swingle Contracting Co. (the bid accepted by the commissioners), has an excellent plan, and while it does not provide quite as much area of water way, it has longer spans and therefore fewer piers in the river. These plans and specifications are well made and satisfactory in every respect."

He further says that the plan and price submitted by the

State ex rel. v. Contracting Co.

Fritz, Roomer, Cooke, Grant Co. is so high that consideration of the plan could not be recommended; that the plans of Mr. Scully are well gotten up, and if a steel bridge is desired, would no doubt meet the requirements of the location.

The joint board or committee, composed of the commissioners, the auditor, and the county engineer, proceeded to canvass the various plans and to ballot on them, with the result that the joint board adopted the Swingle plan, but the contract was not awarded on that day. According to their journal, the board adjourned to the next day, September 4th, when the journal shows the following:

"In the matter of the Sixth street bridge superstructure, the board considered the plans and specifications adopted for the superstructure of the Sixth street bridge, but not being prepared to vote on the awarding of the contract, postponed the matter until the following day, September 5, 1913."

The journal of the commissioners then shows that the commissioners met and adjourned each day thereafter, except Sundays, and on September 11, the board, by a formal resolution, accepted the proposal of and entered into a contract with the Swingle Contracting Co.

The claim of plaintiff's counsel is that, inasmuch as the record does not show that on August 26, when the bids were opened, an adjournment was made to a specific future date, the board thereby lost jurisdiction to further entertain the proceeding as to said superstructure. It is true that the contract was not awarded on the twenty-sixth day of August, the day the bids were opened. The statute, however, is to be given a reasonable construction and to be construed in connection with Sec. 2355 G. C., which provides:

"If they [the commissioners] fail to make a contract, as herein provided, on the day named in the notice, the commissioners may continue from day to day until it is made."

Even in the absence of such a statute as Sec. 2355, it is difficult to see what harm or prejudice could in any way come to anybody by the procedure followed by the board. The board. could not definitely know how long their expert, Mr. Morris,

Muskingum Common Pleas.

would be engaged in considering the various plans and making his report to them. All bids had been publicly opened and read and the whole turned over to a competent engineer for his analysis and report. The plaintiff himself was a bidder and, so far as the record shows, he made no protest to this procedure and made no demand in that behalf. I am of the opinion that by its method of procedure the board did not lose jurisdiction of the right to award a contract and that the board had the legal right to award a contract when it assumed so to do.

It is claimed by the counsel for the plaintiff that Sec. 2355 does not apply when bids are submitted by bidders as provided in Sec. 2345. By reason of chopping the original law into sections for our revised statutes, the matter has become somewhat confused. Section 799, 85 O. L. 221, reads as follows:

"It is competent for the commissioners, if they fail to make the contract or contracts as herein provided for, on the day named in the notice, to continue from day to day until such contract or contracts be made."

The previous paragraphs show that the legislature had in mind both kinds of contracts, not only those awarded upon plans submitted by the commissioners, but likewise where plans were submitted by the bidders, and the law as originally passed is much clearer on this point than it is in our general code.

It is further contended by the plaintiff that the board considered only one plan and that, therefore, the right to competitive bidding was thereby defeated. This contention is not sustained by the proofs. The evidence shows that the plans, bids and estimates were submitted to a competent engineer for his inspection and report. The engineer so selected was recommended by Prof. Sherman of the State University, one of the most competent engineers in the country. Mr. Morris, the engineer selected by him, furnished the commissioners, a carefully wrought out, detailed report, showing a comparison of the different plans submitted and their respective values. Of the plan finally selected (that of the J. A. Swingle Contracting Co.), he says in his report:

State ex rel. v. Contracting Co.

"The plan and specifications are well made and satisfactory in every respect."

The record shows that Mr. Strait, our own county engineer (skilled in his profession), finally approved the plan proposed by the Swingle Contracting Co., which plan the board finally adopted. The plan of bridge submitted by the plaintiff was given careful consideration. The report of the engineer above referred to shows this. Mr. Morris' report on the various plans submitted was before the board and received careful consideration. The resolution awarding the contract is conclusive as to this, and states:

"Whereas, in pursuance to the advertisement inviting proposals for furnishing of materials and performing of work for the building of a superstructure for the Sixth street bridge, in Zanesville, Ohio, certain plans, specifications, drawings, bills of material, and estimates were submitted by various contractors to the commissioners, together with bids and proposals for building the same.'

The plaintiff claims further that the proposed plan and design accepted by the commissioners is not a suitable one for the place at which it is to be erected. It is not the office of the court to devise plans for public structures. This subject is relegated to various officers and boards, and such officers and boards must exercise their judgment and discretion and determine the plan. It is a principle of law that the courts will never intervene where a discretion to be exercised is reposed in another, unless it is shown that there is a gross abuse of such discretion. It way be that no two boards of commissioners would agree as to which of the plans submitted is the better, all things considered, but it certainly does appear here that in this instance the board proceeded carefully, took competent and independent advice from an unbiased engineer, and likewise had the benefit of the counsel of Mr. Strait, the county engineer. Under all the evidence, the discretion of the board seems to have been fairly and reasonably exercised, and their judgment was finally recorded in their resolution, awarding the contract to the Swingle Contracting Co. Under the evi

Muskingum Common Pleas.

dence here submitted, there is not the slightest suspicion or indication of any favoritism or untoward dealing in this matter. Every bidder had his day in court, and his plan, bid, and method of construction were carefully considered.

For these reasons, the finding of the court is in favor of the defendants and the petition will be ordered dismissed at the plaintiff's costs. Notice of appeal and bond in appeal $500.

MUNICIPAL CORPORATIONS.

[Williams Common Pleas, 1914.]

J. H. SCHIEBER V. EDON (VIL.).

1. Municipalities Cannot Sell Bonds Without Vote of People. Section 5649-2 G. C. repeals by implication the authority vested in a municipal council to sell bonds without a vote of the people as provided in Secs. 3939, 3940 and 3941 G. C.

2. Ten Mills Limitation Constitutes Municipal Spending Money. The ten mills limitation provided in Sec. 5649-2 G. C. constitutes annual spending money for the several taxing districts, and a municipality is without authority to sell bonds and create a debt which must be paid out of this annual spending money.

3. Indebtedness Created Only by Vote of Municipality.

Only by a vote of the people can a bonded indebtedness be created against a municipality.

[Syllabus by the court.]

INJUNCTION.

In May, 1914, the village of Edon, Williams county, passed a resolution declaring it necessary to pave certain streets, and in June, passed a paving ordinance in accordance with the resolution.

The village then advertised for the sale of $5,200 of bonds of the village to pay for its part of the cost of the proposed paving without submitting the bond issue to a vote of the people. The bonds were advertised to be sold in July.

The plaintiff, a taxpayer, institnted an injunction suit to prevent the sale of the bonds, and temporary restraining order was granted.