Opinion
No. 29805
Decided March 1, 1944.
Department of Highways — Mandamus — Writ denied to compel director to personally sign certificate of qualification — Adequate remedy by appeal — Sections 1206-6 and 12287, General Code.
IN MANDAMUS.
Relator filed in this court a petition for a writ of mandamus commanding the respondent Director of Highways to act upon relator's application for qualification to submit bids as a contractor for the performance of state highway contracts. The respondent interposed a general demurrer.
Summarized, the petition alleges that on or about August 21, 1943, relator filed an application to be qualified as such contractor; that, under date of August 27, 1943, a Department of Highways employee, bearing the title of credit examiner and purporting to act upon the application, issued a certificate of qualification authorizing relator "to bid at any State Highway Letting until the uncompleted work under contract at any one time does not exceed in the aggregate of $3,000,000" for general contracting and railroad work, which certificate purported to expire on March 1, 1944; that respondent had not acted upon the application although more than ten days had elapsed after it was presented to him; that relator on October 5, 1943, in writing demanded that respondent as director personally act upon the application in the exercise of his personal discretion and on October 22, 1943, the respondent in writing refused so to do; that the certificate is not the certificate of the respondent and he has at no time assumed responsibility as director aforementioned therefor; that because of the acts of the credit examiner the respondent refuses to act upon relator's application, the respondent claiming he had delegated to the credit examiner the discretionary powers and duties of the Director of Highways in the premises; and that relator desires to qualify to submit bids for the performance of contracts which the director may propose to let and is without other adequate remedy to require the director to exercise his discretion on relator's application and to issue or refuse to issue a certificate of qualification thereon.
By agreement of counsel during oral argument a copy of the certificate of qualification was introduced to be considered as incorporated in or as an exhibit attached to the petition. The certificate bears a rubber stamped signature of the respondent, followed by his title "Highway Director" and the typewritten name of the credit examiner, with his title underneath.
Mr. David Ralph Hertz, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Charles G. Williams, for respondent.
Counsel for relator contends that, since Sections 1206-2, 1206-4 and 1206-6, General Code, refer to "the director," there is a clear expression contemplating that an application will receive the consideration of the director, that the discretion to be exercised will be that of the director himself and that the mere fact that ministerial duties may be delegated by the director does not imply that he may likewise delegate the exercise of his discretion.
Section 1206-6, General Code, cited by relator, provides that an applicant "aggrieved by the decision of the director" may request reconsideration, that the director shall again consider the matter and that if the applicant is still aggrieved he may take an appeal to the Court of Common Pleas of Franklin county, upon the grounds of fraud or abuse of discretion by the director.
From the allegations of the petition it is apparent that the applicant is still aggrieved by the decision of the director on October 22, 1943, when he in writing refused to exercise his personal discretion and personally act upon relator's application. Section 1206-6, General Code, afforded relator a remedy by appeal as heretofore recited.
The extraordinary writ of mandamus will issue only where there is not a plain and adequate remedy in the ordinary course of the law. Section 12287, General Code.
The demurrer to the petition is sustained and relator not desiring to plead further a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN BELL, WILLIAMS and TURNER, JJ., concur.