Anderson v. Parsley

• Decision Date: 14 February 1931
• Docket Number: No. 12551.,12551.
• Citation: 37 S.W.2d 358
• Parties: ANDERSON et al. v. PARSLEY et al.
• Court: Texas Court of Appeals

37 S.W.2d 358

ANDERSON et al. v. PARSLEY et al.

No. 12551.

Court of Civil Appeals of Texas. Fort Worth.

February 14, 1931.

Rehearing Denied March 14, 1931.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Suit by O. T. Anderson and others against W. F. Parsley and others. From judgment for defendants, plaintiffs appeal.

Affirmed.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellants.

Kilgore & Rogers, of Wichita Falls, Chauncey Penix, of Graham, W. P. Dumas, of Dallas, and Bryan, Stone, Wade & Agerton, of Fort Worth, for appellees.

BUCK, J.

This case originated in the district court of Young county, and was a suit brought by O. T. Anderson and W. G. Bullock, alleged to be taxpayers and citizens of Young county, against W. F. Parsley, county judge, C. W. Akers, A. C. Anderson, Tom Rice, Sam Bird, and G. Earl Hutchings, members of the commissioners' court, James T Taylor, the successful bidding contractor for a courthouse to be erected at Graham, Young county, E. G. Withers, and J. C. Thompson, the architects employed.

From the statement of facts, it appears that in September, 1930, there was discussed before the commissioners' court of Young county the matter of building a new courthouse, but, by a vote of the commissioners' court, the question was decided adversely to said building; later, one of the commissioners having changed his mind about the matter, on the 10th day of November there was entered an order to build a new courthouse Notices were sent to certain architects that the court would consider the matter of employing architects who, after employment, would prepare plans and specifications. Anton Korn, of Dallas, and Voelcker & Dixon, of Wichita Falls, appeared without any complete plans drawn. Withers & Thompson appeared with complete plans and specifications. After the commissioners had heard each of the visiting architects, they passed an order selecting Withers & Thompson as architects to draw plans and specifications and supervise the building of the courthouse at an agreed compensation of three per cent. for the drawing of plans and specifications, and a further compensation of 2 per cent. for superintending the building. Notice was published on November 12, 1930, and for three weeks thereafter, that bids would be accepted on said mentioned date for the building of the courthouse in keeping with plans and specifications prepared by Withers & Thompson, a copy of the plans to be found in the possession of the architects and in the office of the county auditor.

E. G. Withers testified that for two years he had been talking to the commissioners' court with reference to furnishing plans and specifications for a new courthouse; that on November 10, 1930, he went to Graham and submitted plans; that he did not know anything about a previous decision not to build a courthouse after the meeting in September, 1930; that he had a tentative agreement with Mr. Belcher, the county auditor, to remodel the courthouse; that on November 10th he came to Graham, and that Mr. Voelcker and Mr. Korn were present; that, after discussing the plans at length with the commissioners' court, he was informed that his firm had been selected as the architects, and an order was written to that effect; that later there were some minor changes made in the building plans, and that these changes were indicated upon the blueprints by red lines; that he returned to Graham on November 14th, the following Friday, and that the commissioners' court went over the new plans, found them to be correct and in accord with their desires and wishes; that at this time W. F. Parsley was county judge, and H. L. Leberman, A. C. Anderson, C. W. Akers, and M. H. Sims were commissioners; that they were present at the time the plans were adopted and the order made for the employment of Withers & Thompson as architects; that H. L. Leberman voted "nay" on the question as to whether or not a courthouse should be constructed; the other commissioners voting in the affirmative.

A temporary restraining order was prayed for in the suit filed to restrain the commissioners' court and their successors from undertaking to perform either of said contracts, that is, the contract with Withers & Thompson as architects, and the building contract with James T. Taylor, and keep them from issuing and delivering the specifications of Withers & Thompson, or from undertaking to enforce the tax levies purporting to be made in said orders on December 8th and 20th. On January 5, 1931, the application for injunction was heard by the district judge in chambers, and the temporary injunction was denied, from which order and judgment the plaintiffs have appealed to this court.

Opinion.

The contentions of appellants are stated in their brief, and are substantially as follows:

"(a) The evidence overwhelmingly establishes (or to say the least of it, raises a strong issue of fact) that Taylor Bros. Company of Wichita Falls, were denied the right to bid by being refused plans and specifications and by being dissuaded by the architects, and that such actual stifling of competition renders any contract void.

"(b) That the communications sent out by the architects as to what the county was expecting to pay and undertaking to frighten bidders, was sufficient to justify a jury in finding that there had been an actual stifling of bids so as to render the contract void if it does not conclusively establish it.

"(c) That the law requiring the contract to be let to competitive bids, necessarily requires that the plans which are to form the basis of competition, must be adopted when the proposition is submitted — the law requiring it to be submitted for a given length of time — and there is an issue of fact here as to whether the plans were so adopted or were at any time completed prior to November 26, 1930."

The contentions as to the invalidity of the contract as a matter of law may be summarized as follows:

(a) The statute, article 2368, requiring that contracts of this nature be submitted to competitive bids, and that the bidder be required to furnish a surety bond for the full contract price, and that, after the bids are received, the county shall then consider the matter of letting the same, and shall let the same to the lowest responsible bidder, contemplates that the bids shall be open to all the public; and the specifications here having limited those who might bid on a very substantial part of the work to manufacturers who had been in business for five years so limit competition as to render the whole proceeding void under the express provisions of article 2368 that such contracts shall be void and enjoined at the instance of any taxpayer.

(b) No restriction could be placed upon bids which tend to increase the price to the county, and, the specifications having placed a restriction in that it required the contractors to furnish a list of subcontractors two days prior to bidding, and the undisputed evidence showing that this will cost the county money, same is an unreasonable requirement rendering the contract void; and same is not avoided by showing that the particular bidders were favored by not being required to furnish this information, for changes favorable in their nature may not be made immediately upon the time of bidding.

(c) Certain unreasonable requirements were contained in the specifications with respect to insurance which of necessity increased the contract price at the expense of the county and rendered the contract void.

(d) As to certain items of the work, no competition is asked for, but lump sums were to be paid.

(e) The proposition made was that the county would issue warrants bearing 6 per cent. interest, but the maturity date of the warrants was not shown, and such maturity date is a material factor for prior determination in order that the bids may be competitive — that is, upon the same terms.

(f) That the actual contract entered into is void, because it provides for warrants to bear interest at the rate of 6 per cent. per annum, payable semiannually, whereas the proposition was they should bear 6 per cent. interest per annum, and the contract may not be upon more favorable terms than those provided for, for all bidders are entitled to the right to scale their bids in view of more favorable terms.

(g) That there has been no sufficient tax levy to support the issuance of the warrants, in this:

(1) The order of December 8th is not sufficient as a tax levy because the court did not then have before it all those facts necessary for them to have as a basis for the exercise of their discretion in fixing the tax rate.

(2) The purported levy is not of any given amount, and does not dispose of those discretionary matters, which renders the whole a matter of mathematical or clerical calculation.

(3) The Constitution provides that, when a contract is made, provision must be made at the time for tax levy, and contemplates of necessity that, when the levy is made, the court making the levy must have knowledge of all those facts essential to the exercise of their discretion in fixing the rate, the length of time the tax levy shall be made, etc., none of which the court had on December 8th.

(4) The order of December 8th still leaves for determination certain discretionary matters to render same effective as a tax levy, and these discretionary matters must be determined at a regular term with all members present.

(h) The order of December 20th is wholly insufficient, in that:

(1) It does not purport to be a tax levy.

(2) It cannot be treated as a tax levy because not made at a regular term and with all commissioners present.

(3) It, together with the order of December 8th, cannot be treated as a tax levy because, if the order of December 20th is necessary to render effective the order of December 8th, same was not made at a regular term with all members present.

(i) The statute requiring the giving of a bond...