Kimbrell v. State

• Decision Date: 29 June 1961
• Docket Number: 3 Div. 825,3 Div. 830
• Citation: 272 Ala. 419,132 So.2d 132
• Parties: Fuller KIMBRELL v. STATE of Alabama. COLUMBIA CASUALTY COMPANY v. STATE of Alabama. John GRAVES v. STATE of Alabama. J. W. GWIN, JR., INC. v. STATE of Alabama. W. H. DRINKARD v. STATE of Alabama. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY v. STATE of Alabama. to
• Court: Alabama Supreme Court

Page 132

132 So.2d 132

272 Ala. 419

Fuller KIMBRELL v. STATE of Alabama.

COLUMBIA CASUALTY COMPANY v. STATE of Alabama.

John GRAVES v. STATE of Alabama.

J. W. GWIN, JR., INC. v. STATE of Alabama.

W. H. [Bill] DRINKARD v. STATE of Alabama.

AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY v. STATE of Alabama.

3 Div. 825 to 3 Div. 830.

Supreme Court of Alabama.

June 29, 1961.

Hill, Hill, Whiting, Harris & Pilcher, Montgomery, for appellants, Drinkard, Kimbrell and Gwin.

Hill, Hill, Stovall & Carter, Montgomery, for appellants Graves and Columbia Cas. Co.

Steiner, Crum & Baker, Montgomery, for appellant American Guarantee & Liability Ins. Co.

John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for appellee.

COLEMAN, Justice.

This is a consideration of six appeals from separate decrees overruling demurrers to a bill in equity, brought by the Attorney General in the name of the State of Alabama, to recover state funds alleged to have been paid out illegally.

Respondents are the individuals who at the time of the alleged payments held, respectively, the offices of Director of the Department of Conservation, Director of the Department of Finance, the Comptroller, and their sureties, and J. W. Gwin, Jr., Inc., a corporation, hereinafter referred to as Gwin. The respondents are not sued in their capacity as officials of the State of Alabama but as individuals. The gist of the suit is the claim that the three state officials, acting in their official capacities and in concert with Gwin, caused payments of state money to be made to Gwin, that such payments were illegally made, and that respondents ought to be required to repay the money to the state.

The bill of complaint avers that the Conservation Director made a contract with Gwin for construction of a motel and certain other improvements at Lee-Hi State Park in Limestone County; that the estimated cost was approximately $100,000; that Gwin was to do the work on a cost plus 10% basis; that said contract was made without advertising for sealed bids, without competitive bidding, without the contractor making a performance bond, without the approval of the Governor in writing, and without the approval of the State Building Commission, all in violation of Title 50, Code 1940, as amended by Act No. 492, 1947 Acts, and Act No. 521, 1953 Acts; that from January to May, 1956, Gwin performed the work as authorized by the Conservation Director, except that the concession building was left unfinished; that on February 14, 1956, Gwin filed an invoice claiming $7,784.83 for labor and materials furnished under said contract; that on March 2, 1956, the Department of Conservation executed a material receipt for the labor and materials set forth in said invoice; that on March 1, 1956, a document purporting to be a Purchase Requisition was executed by the Conservation Director, requesting the Finance Director to requisition the labor and materials set forth in said invoice; that on March 22, 1956, the Finance Director executed a purchase order to Gwin, purporting to purchase the labor and materials set forth in said invoice; that on March 23, 1956, the Comptroller issued a warrant on the state treasury for $7,784.83, payable to Gwin, for labor and materials set forth in said invoice, and that Gwin has been wrongfully and unlawfully paid the aforesaid sum under said warrant by the State of Alabama.

The bill further avers that on three specified dates in March, April, and May, 1956, Gwin filed three separate invoices for $17,007.56, $30,960.99, and $45,522.13, respectively, totaling $93,490.68, for labor and materials furnished under said contract; that said invoices were presented by the Conservation Director to the Finance Director and Comptroller for payment, and the Finance Director and Comptroller refused to pay the same 'because of their illegality.'

The bill further avers that on July 20, 1956, Gwin filed seven separate invoices, for amounts ranging, respectively, from $11,053.46 to $14,711.33, totaling $93,490.68, for labor and materials furnished under said contract; that on to wit, July 19, 1956, seven purchase requisitions were executed by the Conservation Director requesting the Finance Department to requisition the labor and materials set forth in the seven invoices; that on July 20, 1956, the Finance Director executed seven purchase orders, corresponding to the invoices, purporting to purchase the labor and materials set forth in the invoices; that on July 20, 1956, the Conservation Director executed seven material receipts corresponding to the invoices acknowledging receipt of the labor and materials set forth therein; that on July 20, 1956, the Comptroller issued a warrant on the state treasury for $93,490.68 payable to Gwin, and that Gwin has been unlawfully paid state funds in the amount of the warrant.

The payment of said funds and the acts of the respondents are characterized in the bill as being wrongful and unlawful. The bill avers that the contract was made by the Conservation Director without legal authority because the contract was entered into in violation of Title 50, Code 1940, as amended by Act No. 492, 1947 Acts, and Act No. 521, 1953 Acts, without advertising, without competitive bidding, without a performance bond by the contractor, without approval by the Governor in writing, and without approval by the State Building Commission.

The bill avers that the contract was void and contrary to public policy for failure to comply with the statute; that the Conservation Director 'did wrongfully and unlawfully attempt to conceal the illegality of said contract in that' he 'attempted to obtain approval of said contract by the State Building Commission subsequent to the execution of said contract and after work had been performed under said contract,' and that the three officials and Gwin 'wrongfully and unlawfully conspired to obtain payments from the State of Alabama for materials furnished and labor performed under said illegal contract by causing said invoices dated March 16, 1956, April 20, 1956, and May 18, 1956, same being Exhibits 13, 14 and 15, to be altered and changed so as to make seven (7) new invoices bearing dates of March 13, 1956, March 16, 1956, April 2, 1956, April 17, 1956, May 1, 1956, May 14, 1956, and May 18, 1956, same being Exhibits 16, 17, 18, 19, 20, 21 and 22; that the labor performed and the materials furnished as shown in invoices which are Exhibits 13, 14 and 15, is the same labor performed and materials furnished as is shown in the invoices which are Exhibits 16, 17, 18, 19, 20, 21 and 22; that said alteration of said invoices was an attempt by said Respondents to evade the requirements of Act No. 521, General Acts of Alabama 1953, requiring approval of the State Building Commission for all contracts for the construction of public improvements in excess of $15,000.00.'

The bill further avers: '18. That said contract is illegal and void and that the illegal payment of public monies made for the public improvements pursuant to said contract are far in excess of the present value of said improvements and said payments were in excess of the amounts which would have been expended had the procedures required by law been followed and said contract awarded to the lowest responsible bidder. * * *'

Fifty-seven exhibits are attached to the bill. The exhibits are copies of invoices, requisitions, letters, and other documents.

The respondents filed separate demurrers, all of which were separately overruled. Respondents have appealed separately and have severally assigned as error the action of the court in overruling their respective demurrers. However, as we understand the argument presented by respondents, they urge two propositions: first, that the bill was without equity because the averments fail to show that the alleged contract was invalid; and second, that even if the contract was invalid, complainant was bound to offer to do equity and the bill is without equity because it contains no such offer.

As to the first proposition, respondents say that although the bill avers a failure of the respondents to comply with Act No. 521, 1953 Acts, page 685, that act does not govern the making of the alleged contract with Gwin. Respondents say that § 176, Title 8, Code 1940, authorizes the Conservation Director, acting through 'the division of state parks,' to make contracts for the construction of buildings in parks and does not require such contracts to be let in compliance with Act No. 521, supra, or Act No. 492, 1947 Acts, page 338.

We think it is clear that the bill shows that the contract was not let in compliance with Act No. 521, and we do not understand that respondents insist to the contrary. So then, if Act No. 521 governs the instant contract, the bill sufficiently shows that the contract was not made in compliance with the applicable statutes. On the other hand, if Act No. 521 does not govern the instant contract, and § 176, Title 8, does govern, then the bill does not show that the instant contract was not made in compliance with the statute. Thus the question for decision is whether or not Act No. 521 applies.

Section 176, Title 8, is a codification of Section 3 of Act No. 556, 1939 Acts, page 878, which is entitled An Act, inter alia, 'To prescribe additional powers * * * of * * * the Director of Conservation with reference to the operation * * * of State Parks and the acquisition of lands for such Parks; to authorize the execution of contracts arising out of the use and ownership of such lands and the waters thereof; * * *.'

Section 176 recites in pertinent part: 'The director of conservation, acting through the division of state parks * * * shall have the following powers * * *: To acquire in the name of the State of Alabama * * * land deemed necessary * * * to be * * * maintained as a part of the state park system; * * *. To construct and operate suitable public service privileges and...