Basham v. Holcombe
| Decision Date | 15 March 1922 |
| Docket Number | (No. 8273.) |
| Citation | 240 S.W. 691 |
| Parties | BASHAM v. HOLCOMBE, Mayor, et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Chas. Eashe, Judge.
Suit by Charles S. Basham against Oscar F. Holcombe, as Mayor, and others. From a decree dissolving a restraining order and refusing an application for injunction, plaintiff appeals. Affirmed.
C. F. Stevens and Kenneth Krahl, both of Houston, for appellant.
Sewall Myer and W. Ray Scruggs, both of Houston, for appellees.
In this petition, Charles S. Basham, a taxpaying citizen of the city of Houston, appeals from a decree of the Eleventh district court of Harris county dissolving a restraining order previously issued in the matter and refusing his application as such resident for an injunction against the mayor, the commissioners, and the comptroller of the city to restrain them from, in their official capacities, entering into a contract with Charles K. Horton for the construction of certain improvements at the city's cotton shed and wharves adjacent to the Turning Basin, as well as from paying him anything for a portion of such work alleged to have then already been done by him. Neither the city of Houston nor Mr. Horton had been made parties to the action.
No brief for appellant has been filed in this court, but the cause has been heard here upon briefs for the appellees, as well as upon oral and written arguments for both sides.
Appellant's contention that injunction in the two respects as prayed for should have been awarded him rests mainly upon these averments in his application for the writ:
(1) That the mayor and city commissioners on September 26, 1921, after due advertisement therefor, received competitive bids for the work, Charles K. Horton's being $114,173.20, while his own (appellant's) was only $113,639.75, which lower amount, in view of his responsibility and competency to carry out his undertaking, constituted the most advantageous bid for the city; that, notwithstanding this, the officials named, on October 24, 1921, at a time when the comptroller of the city had not certified that the money requisite for such work was in the city's treasury unappropriated for any other purpose, and there was in fact no such money in the treasury, nor had any appropriation been made therefor, attempted to award the contract to Horton, in violation of section 19a of article 2 of the charter of the city of Houston.
(2) That despite the fact that no legal contract had been entered into with him, Charles K. Horton had prior to that date proceeded to do part of the work under the purported contract of October 24, 1921, at an approximate cost of $10,000, and the city officials were about to pay him that sum therefor.
The trouble with the position thus taken is that the facts were not proven as so alleged; the application setting out these grounds for the injunctive relief sought was filed December 31, 1921, but the answer of the officials sued — interposed by way of motion to dissolve the restraining order issued by the court on original presentment to it of the petition — did not come in until the same day the judgment vacating this preliminary writ and refusing the injunction was entered, that is, on January 7, 1922; in this answer the city officials, as of that date, denied under oath that they had made any such contract on October 24, 1921, or at all, or that they contemplated making one or paying Charles K. Horton anything until a legal and valid agreement in all respects as provided by law and ordinance had first been entered into between him and the city of Houston.
The substance of further answering averments was that, if Horton had done any advance work, it was upon his own responsibility without agreement of any sort from the city; that Basham's bid was not in fact the lowest and best one, in that the basis on which the bids were called for and received was upon all work exclusive of general excavation, and, when all bids entered were considered upon that basis, Horton's was the lowest; that on receiving the several bids made the city council had carefully considered them all, and had in good faith exercised its discretion in then voting that the contract be awarded to Horton for the reason that his was in reality not only the lowest but the best bid for the city, he being, in the council's judgment, in point of equipment and experience in better position than the other bidders to promptly and satisfactorily complete the work; that subsequently, on January 3, 1922, the comptroller had certified to the council that the necessary money...
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