State ex rel. Highway Construction Co. v. Baker

107 Ohio St. (N.S.) 624

• Court: Ohio Supreme Court
• Decided: May 18, 1923
• Docket: Nos. 17979 to 17982
• Status: Published

Opinion

By the Court.

The petitions in these cases allege that the relator has entered into a contract with the highway department for the construction of a road improvement in Lorain county, has entered upon the performance of same, and is complying in all respects with the statutes, the rules of the department, and the specifications of his contract, and that estimates have been made of the work already done, which estimates have been submitted in the regular way to the department of finance for allowance and approval as provided by law. Among other allegations of the petitions we find the following:

“That such estimate so made and so certified to the defendant herein as aforesaid, was a legal estimate, and was made, certified, and presented to such department of finance in strict accordance with the laws of the state of Ohio relating thereto.

“Relator avers that said defendant refused and neglected to approve such estimate or to certify the same to the auditor of the state of Ohio or allow the same to be filed with the auditor of the state of Ohio with his approval, and that such refusal was without right, reason, or any justification in law.”

Without discussion of the allegations of the petitions in detail, it is sufficient to say that enough appeal’s therein to show that the relator is without legal remedy, and that, if the well-pleaded allegations of the petitions are true, which the demurrers admit, the relator is entitled to the relief prayed for.

Many legal questions have been argued in these cases which were also argued in disposing of a demurrer in State, ex rel., v. Herrick, ante, 611, 140 N. E., 314, decided concurrently herewith, and the opinion in that case therefore has application to the present controversies.

We shall not attempt to determine at this time what defenses might be made to the allegations of the petitions in these cases, but that matter will be determined in the event the defendant desires to file answers, and for such purpose leave will be given to file answers within five days. The demurrers to the petitions will be overruled.

Demurrers overruledJ.

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur. Wanamaker, J., not participating.