Bornstein v. Louisville School Board

• Decision Date: 26 November 1909
• Citation: 122 S.W. 522,137 Ky. 108
• Parties: BORNSTEIN v. LOUISVILLE SCHOOL BOARD et al.
• Court: Kentucky Court of Appeals

122 S.W. 522

137 Ky. 108

BORNSTEIN v. LOUISVILLE SCHOOL BOARD et al.

Court of Appeals of Kentucky.

November 26, 1909

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Suit by Jacob Bornstein against the Louisville School Board and others. From a decree dismissing the petition, plaintiff appeals. Reversed and remanded for judgment as directed, and for further proceedings.

M. A D. A. & J. G. Sachs, for appellant.

Wallace A. McKay and W. P. Hillsman, for appellees.

HOBSON J.

The Louisville school board advertised for bids for the brickwork of the Duker Avenue school building, and it was specified in the advertisement that the bidders should state what they would charge if Louisville brick were used, and what they would charge additional if Akron brick were used. A number of bids were made for the work, among others one by Jacob Bornstein, in which he offered to do the work for $9,600, and there was added to the foot of his bid a statement that, if Akron brick were used, he would charge $40 per 1,000 additional. George Hoertz also made a bid in which he offered to do the work for $11,923 with Louisville brick, and a certain higher sum if Akron brick were used. John Hoertz was a member of the school board and also chairman of the building committee. When the bids were opened, at the suggestion of the architect, Bornstein's bid was thrown out as irregular because he did not specify what he would charge if Akron brick were used in a lump sum, but only stated that he would charge $40 per 1,000 extra. The committee thereupon decided to use Louisville brick, and the bid of George Hoertz was accepted, which was lower than any other bid except the Bornstein, bid, and this had been thrown out. The committee reported its action to the school board who approved the action of the committee, and made a contract with George Hoertz for the brickwork of the building. Bornstein then brought this suit to enjoin the school board from having the building constructed by Hoertz upon the ground that the committee had capriciously rejected his bid although he was the lowest and best bidder, and that the bid made in the name of George Hoertz was in fact the bid of John Hoertz, the chairman of the committee, and that the school board was making a contract with one of its own members for the building of the schoolhouse at a higher price than the lowest and best bid, and was thus wasting $2,323 of the school money. The application for a preliminary injunction was refused; answers were filed. On final hearing his petition was dismissed, and he appeals.

Bornstein sued as a taxpayer, and as such he might maintain an action to prevent the waste of the school fund in which he was interested, or to prevent the school board from making a contract with one of its own members for the work. He made the school board. John Hoertz, and George Hoertz parties to the petition. The house was built pending the action, and was about completed when the last depositions were taken. It is not easy to see on what ground the bid of Bornstein was rejected as irregular when it was decided to build the house of Louisville brick, for it was clearly stated in his bid that he would do the work for $9,600, and, after throwing out his bid, the board accepted the bid of George Hoertz for $11,923. Bornstein was a contractor in good standing. He was then just finishing another schoolhouse for the board, and it is hard to believe that, if these persons had been accepting bids to build a house for themselves, they would have thrown out a bid that was the lowest by $2,323, and then accepted the next higher bid, after they had determined not to use Akron brick; for, whatever defect there might have been in Bornstein's bid as to Akron brick, it was perfectly definite as to what he would charge if Louisville brick were used.

But, passing by this question, we come to the main question in the case: Was the bid made in the name of George Hoertz really made by John Hoertz, a member of the school board, and chairman of the building committee? Sections 2975, 2976, Ky. St. (Russell's St. §§ 854, 855), among other things provide as follows:

"No person shall be eligible to this office who, at the time of his election, is directly or indirectly interested in any contract with the board, or who holds any office of trust, agency or salary with any corporation which holds any contract with the board, or who is any way benefited by the appropriations of the board; or whose father, son, brother, wife, daughter or sister is employed as teacher or as professor, or in any other capacity by said board, or in any of the public schools, or who is, directly or indirectly, interested in the sale to the board of books, stationery, or other property."

"If, after election, any member of the board should become a candidate for nomination for any office or agency, the holding and discharging of which would have rendered him ineligible before his election, or should he remove out of the district for which he was chosen, or should he do or incur anything which would have rendered him ineligible for election, or should any of the relatives above specified be employed by the board, his office shall become vacant and be filled as herein directed."

It will thus be seen that the statute makes any person who is directly or indirectly interested in any contract with the board ineligible for election, and declares that if after election he shall become directly or indirectly interested in any such contract his office shall become vacant. By section 2768, Ky. St. (Russell's St. § 556), members of the general council are forbidden to be directly or indirectly interested in any contract with the city, and under this provision it has been held that, if a member of the council is interested in any contract made with...