Fones Hardware Co. v. Erb

• Decision Date: 03 July 1891
• Citation: 17 S.W. 7,54 Ark. 645
• Parties: FONES HARDWARE CO. v. ERB
• Court: Arkansas Supreme Court

17 S.W. 7

54 Ark. 645

FONES HARDWARE CO. v. ERB

Supreme Court of Arkansas

July 3, 1891

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Suit on behalf of the Fones Brothers Hardware Company to enjoin Jacob Erb, county judge of Pulaski county, and C. H. Whittemore and Theo. Hartman, bridge commissioners of said county, from executing a contract with the Missouri Valley Bridge Company for the construction of a county bridge across the Arkansas river at Little Rock.

The complaint alleges in substance that plaintiff, a corporation is a citizen, resident and tax-payer of Pulaski county; that the county court of Pulaski county, while being held by the county judge alone, had appointed commissioners to select a site for a bridge across the Arkansas river at Little Rock that these commissioners had selected as the site for locating and landing said bridge Main street in Little Rock that afterwards, without any appropriation ever having been made by the levying court for the construction of such bridge, the county judge, while holding the county court alone, had appointed Hartman and Whittemore as commissioners to contract for the building of said bridge and to procure bids therefor in conjunction with himself; that said judge and commissioners, after adopting general specifications but without ever having adopted a definite plan and detailed specifications, advertised for "sealed proposals competitive plans and specifications" for the construction of said bridge, a copy of which notice is exhibited; that bids were submitted under this notice by two different bidders; that each bidder bid on a different plan and each bidder bid on several different plans, each bidder furnishing his own plans and specifications, all conforming however to the general specifications which had been adopted by the commissioners; that the Youngstown Bridge Company, a responsible contractor, had furnished a plan and specifications conforming to the commissioners' general specifications, and had bid and offered to build said bridge for $ 218,000; that the Missouri Valley Bridge Company, by its agent, A. J. Tullock, had submitted a plan and specifications, also conforming to the commissioners' specifications, and upon their plan said Missouri Valley Bridge Company, hereinafter called the Missouri Company, bid and offered to build said bridge for $ 258,000; that said commissioners had resolved that the Missouri Company's bid of $ 258,000 was lower than the Youngstown Bridge Company's bid of $ 218,000, and had formally so reported to the county court, and had recommended a contract to be made with the Missouri Company for the building of said bridge at the price of $ 258,000; and that the county judge and said commissioners, without any appropriation having been made therefor, were about to sign up a written contract on behalf of the county with said company for the construction of said bridge at said price of $ 258,000, and would do so unless restrained by an injunction; that there had been other bidders on the ground, and that some of them would have agreed and offered to build the identical bridge proposed to be built by the Missouri Company for less than $ 258,000, but that they had no opportunity to see, and could not therefore bid upon, the particular plan and specifications furnished and bid upon by the Missouri Company. Plaintiff further alleged that said bridge was about to be located, and under said contract would be located, landed and constructed on Main street in Little Rock, and that the Missouri Bridge Company and its agent Tullock were about to build, and, unless enjoined, would build said bridge under such contract. Prayer for an injunction to restrain the county judge and the commissioners from executing the contemplated contract with the Missouri Company, or from making any contract for the building of said bridge without first adopting a definite plan and detailed specifications and letting the contract to the lowest bidder, or from making any contract touching said bridge until an appropriation therefor shall have been made.

Plaintiff moved for a temporary restraining order. On this motion affidavits and counter affidavits were filed. A demurrer to the complaint was sustained. Plaintiff appealed.

The following is the advertisement calling for bids, plans, and specifications:

"PROPOSALS FOR THE CONSTRUCTION OF HIGHWAY BRIDGE OVER THE ARKANSAS RIVER AT LITTLE ROCK, ARK.

"Sealed proposals, competitive plans and specifications, will be received up to noon, April 7, 1891, for the construction of a foot, highway and street railroad bridge to be built by Pulaski county, Arkansas, over the Arkansas river, at the foot of Main street, in the city of Little Rock. Proposals must be sent by mail, indorsed 'Proposals for Arkansas River Bridge,' and addressed to Hon. Jacob Erb, County Judge, Little Rock, Ark. They must be accompanied by a certified bank check for $ 5000. All plans must comply strictly with general specifications furnished by the county.

The county reserves the right to reject any or all bids. For profile and plans of river and other information, apply to F. W. Gibb, commissioner of roads and bridges, Little Rock, Ark.

"J. ERB, County Judge.

"T. HARTMAN,

And C. H. WHITTEMORE,

"Commissioners.

"Little Rock, Ark. March 3, 1591."

Judgment reversed and cause remanded.

J. M. Moore and W. S. McCain, for appellant.

1. No contract can be let for the building of a bridge of the first class before an appropriation is made for the purpose. An appropriation for preliminary work, surveys, soundings, etc., is not sufficient. Sec. 1451, Mansf. Dig.; ib., secs. 1443-5, 5600-3, 1449-50; ib., 499 etc.; 34 Ark. 356; 36 id., 641; 40 id., 549-50; 34 id., 307; 98 U.S. 104, 114; ib., 395; 105 id., 735; 88 N.C. 489; 12 Mich. 279; 42 N.W. 363; 75 N.Y. 72.

2. The act of 1891 violates art. 19, sec. 16, Const. 4 Neb. 150; 21 Ohio St. 322; 33 Barb. 515; 121 N.Y. 631; 85 Pa.St. 379.

3. Injunction was the proper remedy. 13 Ark. 198; 51 id., 235; 43 id., 119; Mills, Em. Dom., 130; 82 Mo. 367; 31 id., 181; 50 Ark. 466; 10 Wall., 497; 45 Ia. 23; Const., art. 16, sec. 13; High on Injunction, 1251; 24 N.E. 366; 29 A. & E. Corp. C., 424; 34 Ark. 607; 38 id., 462; 53 id., 205; 51 Ind. 266; 55 Ind. 30; 13 Ill. 618. Appellant had no other remedy. 53 Ark. 287.

G. W. Caruth and U. M. & G. B. Rose for appellees.

1. Art. 7, sec. 30, const., prescribes the jurisdiction of the quorum court; the legislature can neither add to nor take from it. 6 Ark. 75; 22 id., 384; 49 id., 160; 12 id., 101; 7 id., 262, etc., 32 id., 497.

2. The law relating to bridges is not involved in the sections limiting contracts made by the county courts. Mansf. Dig., secs., 497 to 503; Acts of 1891; 2 Dillon, 253.

3. As there has been an appropriation for the bridge, which was partly unexpended, the contract is valid. Acts 1875, p. 53; Acts 1879, p. 115; Mansf. Dig., 1451; 6 McLean, 113; 36 Ohio St. 409; Endlich, Int. St., 352.

4. In case of important public works, no injunction should issue unless a plain case is made for relief. 13 Ark. 212; 21 F. 261; High, Inj., sec. 34.

OPINION

HEMINGWAY, J.

This appeal presents for determination three questions: First--When a board of commissioners for building a bridge across a stream more than 400 feet wide have advertised for and received bids with competitive plans and specifications, can it adopt a plan and specifications thus received and accept the accompanying bid? Second--Can such board make a contract for building a bridge before any appropriation therefor has been made, or when there is an unexpended appropriation "for preliminary work, estimates, etc., toward securing such bridge?" Third--If such board is about to make such a contract, will a court of equity, at the suit of a tax-payer of the county, interfere by injunction?

1. If the first question could be determined by the provisions of the act of February 19, 1891, our response would be, that the board was authorized to adopt a plan and specifications submitted in response to such notice, and to accept the accompanying bid. But it is insisted for the appellant that this act is unconstitutional, because it contravenes section 16, art. 19, of the constitution of the State, which is in the following words: "All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor, or for providing for the care and keeping of paupers where there are no almshouses, shall be given to the lowest responsible bidder under such regulations as may be provided by law."

The point made is, that the act does not admit of competitive bidding in awarding contracts, and provides a plan by which the lowest bidder cannot be ascertained, or the giving of contracts confined to such bidder.

The constitutional provision was designed to secure economy in the line of public improvements to which it relates. Extravagance therein might arise either from the inattention or incompetency of the contracting officer, and his consequent failure to obtain favorable offers for contracts or it might arise from the corruption or favoritism of such officer and his consequent refusal to accept favorable offers when made. To prevent, extravagance from the first source the plan of public letting is adopted, the public are informed of contracts to be let, and its self-interest and rivalry are appealed to for proper offers upon them; to prevent extravagance from the latter source all discretion is withheld from the contracting officer, he is bound to give the contract to the lowest bidder, and cannot let it out for individual gain or as a reward to another. The method prescribed is well understood, clearly defined and of distinctive character,...