Hunter v. Whiteaker & Washington

• Decision Date: 20 April 1921
• Docket Number: (No. 6549.)
• Parties: HUNTER et al. v. WHITEAKER & WASHINGTON et al.
• Court: Texas Court of Appeals

230 S.W. 1096

HUNTER et al. v. WHITEAKER & WASHINGTON et al.

(No. 6549.)

Court of Civil Appeals of Texas. San Antonio.

April 20, 1921.

Rehearing Denied May 26, 1921.

Appeal from District Court, Johnson County: Bruce Young, Judge.

Suit by E. E. Hunter and others as residents and taxpayers of Johnson County, Tex., against Whiteaker & Washington and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

S. C. Padelford, of Fort Worth, and J. E. Warren and H. P. Brown, both of Cleburne, for appellants.

J. I. Kilpatrick, Jr., Walker & Baker, and Prestridge & Keith, all of Cleburne, for appellees.

FLY, C. J.

It is alleged in the petition that the suit was instituted by "The county of Johnson, a municipal corporation, by and through E. E. Hunter, W. H. Griffith, C. E. Dempwolf, H. C. Gresham, J. M. Wright, J. F. Irvin, D. G. Wilson, O. B. Foster, Ben Simonds, E. S. Clack, S. L. Hazlett, W. A. Killough, resident domiciled taxpaying voters of Johnson county, Tex.," and the parties named not only claim to represent the county but "all other taxpaying voters" in the county, and they brought their action against the county judge and county commissioners "and all the said defendants as the commissioners' court of Johnson county, Tex.," and the firm of Whiteaker & Washington, whose members are R. O. Whiteaker and W. O. Washington. The prayer is that the commissioners' court and Whiteaker & Washington be restrained "from carrying out or proceeding any further" under a certain contract wherein the commissioners' court had agreed to pay certain sums to Whiteaker & Washington for their services as civil engineers in supervising and laying out the work of building roads in Johnson county, under a bond issue of $2,000,000 voted by the people of the county. The cause was tried by the court, a jury not having been demanded, and judgment was rendered that appellants take nothing by their suit, and pay all costs.

On May 10, 1919, the voters of Johnson county, by a two-thirds majority, voted in favor of an issue of bonds for $2,000,000, for the purpose of building and maintaining a system of public roads in and for said county. The election was in strict compliance with law, and the bonds were duly and legally issued and sold, and the proceeds deposited in the National Bank of Cleburne. On July 3, 1919, a contract was entered into between the commissioners' court of Johnson county and Whiteaker & Washington by which the latter were employed as civil engineers to lay out the roads and supervise the road building of the county. Before entering into the contract, the commissioners' court, acting in conjunction with representative citizens of the county, had made a full and thorough investigation of the work, reputation, and ability of the firm of engineers, as well as investigating the reputation and ability of a large number of other engineers who had filed proposals with the commissioners' court, and had chosen the firm of Whiteaker & Washington as making the best and most advantageous proposal. The contract was not made through competitive bids, nor was any notice given that such contract would be made. No fraud was shown upon the part of any of the contracting parties, but the contract was entered into in an honest and open manner, and the engineers entered into the performance of their contract duties. We adopt the conclusions of fact of the trial judge, none of which is assailed except the one which found that the contract was for "professional services on the part of the engineers requiring technical and scientific training and skill," and that finding is only excepted to because of the conclusion of law based on it. The conclusion of fact is undoubtedly sustained by the evidence, as well as common knowledge as to what services are rendered by civil engineers.

There is but one question of law in this case, and that is whether a commissioners' court has the legal power and authority to enter into a contract with engineers for their technical and professional services in connection with the construction and maintenance of public highways and roads in their county, without advertising for competitive bids for such services. It is the claim of appellants that, by the terms of article 2268a. Revised Statutes, which was passed by the Thirty-Fifth Legislature, and approved by the Governor on March 30, 1917 (Laws 1917, c. 141 [Vernon's Ann. Civ. St. Supp. 1918, art. 2268a]), no contract calling for or requiring the expenditure or payment of $2,000 or more out of funds of any county can be made by the commissioners' court, without first submitting such contract to competitive bids after giving notice of the time and place, when and where, such contract will be let by publishing in a newspaper, published in the county or subdivision, once a week for two weeks, prior to time for letting such contract.

For some reason, sufficient for the legislative mind, it is indicated that the article in question should become a part of title 29, c. 2, Revised Statutes of 1911, for it is provided in the second section of the act that it shall not be construed to repeal any part of that title and chapter, but that it "shall be cumulative to said title and chapter." The title and chapter in question is on the appointment and duties of the county auditor, and does not purport to repeal any law.

The election for the issuance of bonds was held in May, 1919, under the authority of title 18, c. 2, Revised Statutes, as amended in 1917, and the lawful issuance and sale of the bonds by the commissioners' court is not questioned, the only issue being as to the method of employing a civil engineer to have charge of the construction of the roads contemplated by the bond issue. Undoubtedly, the law was passed for the guidance of the auditor in the discharge of his duties, which are a general oversight of all the books and records of all the officers of the county, district, or state who are authorized to collect moneys belonging...