Opinion
No. 38316
Decided October 2, 1963.
Mandamus — Not available where adequate remedy by injunction — Awarding public contract to lowest and best bidder — Discretion in awarding contract.
APPEAL from the Court of Appeals for Montgomery County.
By this action in mandamus instituted in the Court of Appeals, the relator, engaged in the business of constructing water and sewer systems, seeks a writ requiring the respondents, members of the Board of County Commissioners of Montgomery County, to rescind their action awarding a contract for the installation of a water distribution system and sanitary sewer system to another bidder and to award the contract to relator, the alleged lowest and best bidder.
The Court of Appeals denied the writ because relator has an existing and adequate remedy by way of injunction.
An appeal as of right brings the cause to this court for review.
Messrs. Marshall Smith and Mr. Robert L. Ross, for appellant.
Messrs. Bieser, Greer Landis, Mr. Paul R. Young, prosecuting attorney, and Mr. Paul J. Fleischauer, for appellees.
Relator has an adequate remedy by way of injunction. This court will ordinarily, in the exercise of its discretion, deny a writ of mandamus where the relator has a plain and adequate remedy in the ordinary course of the law, including an equitable remedy. State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St. 302; State, ex rel. Al Monzo Construction Co., Inc., v. Board of Control of City of Warren, 172 Ohio St. 370.
The Court of Appeals has the same discretionary power with respect to the allowance of a writ of mandamus in such a case originating in that court. State, ex rel. Cotleur, v. Board of Education of Cleveland Heights School Dist., 171 Ohio St. 335; State, ex rel. Grant, Jr., Exr., v. Kiefaber et al., Montgomery County Planning Comm., 171 Ohio St. 326.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.