Board of Sup'rs of Hancock County v. Cooper

• Citation: 112 So. 682,147 Miss. 57
• Decision Date: 16 May 1927
• Docket Number: 26567
• Parties: BOARD OF SUP'RS OF HANCOCK COUNTY et al. v. COOPER. [*]
• Court: Mississippi Supreme Court

112 So. 682

147 Miss. 57

BOARD OF SUP'RS OF HANCOCK COUNTY et al. v. COOPER. ^[*]

No. 26567

Supreme Court of Mississippi

May 16, 1927

Division B

1. HIGHWAYs. On changing specifications of contract for sea wall before completion of advertisement for bids, contract subsequently entered into was void {Hemingway's Code sections 8734, 3742; Laws 1924, chapter 319, section 4).

"Where road protection commission, under Laws 1924, chapter 319 advertised for bids for construction of sea wall in accordance with Hemingway's Code, section 3734, but before completion of advertisement amended plans and specifications relative to liability for storm hazard and liquidated damages for delay after expiration of time limit the contract was void, in view of sec-ton 3742, not with standing the prospective bidders ware personally notified of such changes, since Laws 1924, chapter 319, section 4, authorizing advertisement for bids without setting out manner of making advertisement, had effect of adopting general statute relative thereto.

2. HIGHWAYS. Changes, pending advertisement for bids in plans and specifications for sea wall affecting storm hazard and liquidated damages, held material, requiring new advertisement (Laws 1924, chapter 319).

Changes in plans and specifications for construction of sea wall, under Laws 1924, chapter 319, pending advertisement for bids, affecting liability for storm hazard and liquidated damages for delay after expiration of time limit, held material and to require advertisement for prospective bidders to start all over again.

HON. v. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Hancock county HON. V. A. GRIFFITH, Chancellor.

Suit by William Cooper against the board of supervisors of Hancock county and others. Decree for complainant, and defendants appeal. Affirmed.

Decree affirmed.

R. L. Genin, E. J. Gex, Gardner & Brown, Gex & Russell and Carl Marshall, for appellants.

The appellants contend that such changes as were made by the road protection commission and the board of supervisors of Hancock county did not in any respect constitute a change in the quality, strength, or quantity of the work or the nature of the construction of the sea wall; that the amendments did not constitute a change in the manner in which said work should be constructed; that the nature of the modifications was such that the commission and the board of supervisors had the right to make them at any time prior to the execution of the contract; and that there was no law requiring three weeks' publication of the notice of the specifications as amended.

Chapter 319, Laws of 1924, granting authority to road protection commissions to enter into contracts to construct sea walls or road protection is a new law independent of the general statutes governing the making of contracts by the board of supervisors, and the manner of advertising for such contracts is not governed by the general laws relative to letting of public contracts by such board of supervisors. Peers v. Martin, 101 So. 78; Gully v. Harrison County, 84 So. 163.

The complaining taxpayer did not even attempt to allege that the two simple amendments that were made would result in the county obtaining a sea wall constructed in any manner of less strength or durability, nor in the type or plan of the structure itself. He asserts the invalidity of the awarding of the contract on the sole grounds that after the simple alterations were made, a new advertisement was not had for a period of three weeks. In fact, as the record discloses, there was no change whatsoever in the plans or specifications and, therefore, the taxpayer has no just grounds for complaint against the action of the commission and of the board.

The record discloses that it was in the interest of the county to modify section or paragraph 30 of the specifications to the extent that the contractor would not be liable for the result of tidal waves in the Gulf where the waters thereof were raised to a height of four feet above mean Gulf level. Such change in no way lessened the durability, stability, or the quality of the material, or the plan of construction, but were made simply in the interest of economy to the county and to induce bidders to make a lower price for the construction thereof because of the release from liability from any damage or injury the wall might sustain from causes over which they had no control whatsoever.

The commission and the board also found as the testimony discloses, that the reduction of the penalty from one thousand to one hundred dollars per day for each day that the work remained uncompleted within the contract period was also made in the interest of the county.

Section 4, chapter 319, Laws of 1924, creating the road protection or sea wall commission provides that the commission, not the board of supervisors shall "advertise for bids and let a contract or contracts therefor," but the chapter makes no provision as to the manner or length of time the commission shall advertise for bids.

Section 361, Code of 1906 (section 3734, Hemingway's Code) provides that all contracts made by the board of supervisors for any public work not otherwise specifically provided for shall be made after at least three weeks public notice by advertisement in a newspaper. It was clearly the intention and purpose of the legislature, however, to create as far as possible an independent body to have control and charge of the construction of road protection or sea wall; hence, the general statute does not apply.

The awarding of the contract has the very strongest of support in principle in Marion County v. Foxworth, 83 Miss. 677, 36 So. 36. See, also, Dickson v. Greene County, 76 Miss. 794; Quin v. Pike County, 94 Miss. 356; Robertson, Rev. Agt., v. Southern Bitulithic Co. et al., 97 So. 482.

The proceedings leading up to the actual letting of the contract were all enacted in the utmost good faith, and if not in literal compliance with the laws governing the letting of contracts by the board in such matters, certainly in substantial compliance with chapter 319, Laws of 1924, and all other statutes, if any, in any way affecting the awarding and making of such contract for the particular work contemplated to be done under the contract in question.

J. L. Taylor, for appellee.

Chapter 319, Laws of 1924, known as the sea wall law, stipulates that the commission advertise for bids and let the contract or contracts therefor, such contracts to be submitted to and approved by the board of supervisors and to be executed by the board of supervisors.

Section 361, Code of 1906 (section 3734, Hemingway's Code), provides that all contracts by the board of supervisors for any public work not otherwise specifically provided for shall be made upon at least three weeks' public notice in the newspapers and in all cases before the notice shall be published or posted, the plans and specifications for the work shall be filed with the clerk and there remain.

In this case the plans and specifications were filed with the clerk of the board of supervisors and were approved by the board, but after advertising for bids had been begun, the road protection commission changed the specifications with the consent of the board. However, bids were not received for the work on the plans and specifications filed with the clerk of the board before the beginning of the notice for bids, but bids were received on the plans and specifications that were amended after the notice for bids had been begun, which does not appear to comply with the requirements of said code sections. See Leflore County v. Cannon et al., 81 Miss. 334; State v. Wall, 98 Miss. 521.

The president of the commission testified that the difference in price between the first bid and the last bid was three hundred thousand dollars, so that evidently there must have been a very material change in the specifications to warrant the difference of three hundred thousand dollars in the bid.

This cause should be affirmed.

Argued orally by R. L. Genin and Hanun Gardner, for appellants.

OPINION

ANDERSON, J.

Appellee filed his bill in the chancery court of Hancock county against appellants board of supervisors of Hancock county, road protection commission of that county, and Pryor-Orman & Co., to enjoin the carrying out of a contract between appellants Hancock county and the road protection commission on the one hand, and appellant Pryor-Orman & Co., on the other, which contract had been entered into under chapter 319, Laws of 1924, and by the terms of which Pryor-Orman & Co. had undertaken to construct a sea wall along the sea front in that county. The bill was answered by appellants, and there was a trial on bill, answers, and proof, resulting in a decree granting the prayer of appellee's bill, and from that decree appellants prosecute this appeal.

The statute involved authorizes any county in this state, where any land of such county touches upon a body of tidewater, to erect a sea wall or other construction for the protection of the public highway extending along the shore of such body of tidewater, to issue bonds of the county therefor, and to apply a portion of the gasoline tax collected therein toward the payment of the interest and principal of such bonds. The statute is known as the Sea Wall Act.

The questions involved require a construction of section 4 of the act, in connection with sections 361 and 369 of the Code of 1906 (sections 3734 and 3742, Hemingway's Code). Section 4 of the Sea Wall Act is as follows:

"Whenever it may be necessary to protect any highway under the provisions of this act, the board of supervisors by an order on their minutes shall so declare and shall certify the same to the Governor of the state, who...