Manly Bldg. Co. v. Newton

• Decision Date: 07 November 1901
• Citation: 40 S.E. 274,114 Ga. 245
• Parties: MANLY BLDG. CO. v. NEWTON et al.
• Court: Georgia Supreme Court

40 S.E. 274

114 Ga. 245

MANLY BLDG. CO. v. NEWTON et al.

Supreme Court of Georgia

November 7, 1901

Syllabus by the Court.

1. County authorities whose duty it is to contract for the erection of a court house or other public structure may under Pol. Code, § 344, after advertising as is provided in section 345 thereof, cause the work to be done "by letting out the contract therefor to the lowest bidder, at public outcry, before the court-house door"; or such authorities may, either in the first instance, or after having undertaken to let the contract at public outcry, and rejecting all bids received, have the work done "by contract or sealed proposals." When, however, the latter method is pursued, an indispensable prerequisite to the making of a lawful and valid contract is the inviting of offers or proposals by advertising in accordance with the section last above named.

2. A notice which merely declares that "payments are to be made in cash, and at such times as may be agreed upon by the contractor, ordinary, and architects," does not meet the requirement of that section, which prescribes that the notice therein provided for shall embrace such particulars as will enable the public to know the "terms and time of payment."

3. When an ordinary advertises for sealed proposals for the erection of a court house, and, after receiving, considering, and rejecting all such as are presented to him, makes changes in the plans and specifications of the proposed building, which in substantial respects vary its character and materially affect its cost, he cannot, without further advertising lawfully accept new proposals for the construction of the building, and award a contract therefor.

4. Taxpayers certainly may, within a reasonable time after such contract has been let, invoke equitable aid to enjoin the enforcement of the same for a noncompliance with the law in the letting, and can in no view be regarded as in laches in this particular when steps looking to that end are taken within a period of time less than a calendar month from the date when the contract is entered upon the proper minutes.

5. County authorities may, without being said to create a debt within the meaning of the constitution, contract for the building of a court house, to be paid for out of available funds in the treasury, or with the proceeds of taxes that have been, or may lawfully be, levied during the year in which the contract is made.

Error from superior court, Tattnall county; B. D. Evans, Judge.

Suit by D. C. Newton and others against the Manly Building Company and another to restrain the construction of a court house. From a judgment in favor of plaintiffs, defendant company brings error. Affirmed.

Felder & Rountree and T. W. Hardwick, for plaintiff in error.

W. G. Warnell, Jas. K. Hines, R. L. Gamble, and E. J. Giles, for defendants in error.

LITTLE J.

Newton and others, averring themselves to be residents and taxpayers in the county of Tatnall, filed a petition, in which Alexander, as ordinary of that county, and the Manly Building Company, were made defendants. The petitioners prayed, after making certain allegations, that the defendants be enjoined from performing and carrying out a certain contract which had theretofore been entered into between them for the construction of a court house for the county of Tatnall at Reidsville, in said county, and that said contract be decreed to be void and of no force, and for general relief. The record discloses the following to be the facts in relation to the execution of that contract: The grand jury, at the April term of the superior court of that county, recommended that the ordinary proceed at once to let the contract for the building of a new court house at Reidsville, not to exceed in cost the sum of $30,000. On April 10, 1901, in order to carry into effect that recommendation, the ordinary caused to be published, as provided by law, the following notice "Notice to Contractors. Sealed proposals will be received by the ordinary of Tatnall county at his office in the court house, Reidsville, Georgia, up to 12 o'clock noon, Tuesday, June 11th, 1901, for the furnishing of all material and labor in the erection of a county court house for Tatnall county. All the plans and specifications are on file at the ordinary's office at Reidsville, Georgia, and also on file at the office of the architects, J. W. Golucke and Company, 4th floor, Temple Court, Atlanta, Georgia, where they can be seen by prospective bidders. The building will be two and one-half stories high, about 60X125 feet in size, constructed of brick, stone, terra cotta, and iron. The first floor will contain the county offices and vaults for records. The second floor will contain the court room, jury rooms, judge's room, witness rooms, etc. Payments are to be made in cash, and at such times as may be agreed upon by the contractor, ordinary, and architects. Each contractor must inclose in his bid a one thousand dollar certified check, made payable to the ordinary of Tatnall county, as a guaranty that he will enter into contract at his bid, and give a good and solvent bond, by a surety bond company authorized to do business in the state of Georgia, in double the amount of his bid, within twenty days after said contract is awarded him, and, on his failure to comply with these terms, the said check to revert to the county as liquidated damages. The right is reserved to reject any and all bids. By order of the ordinary, sitting for county purposes, this the 10th day of April, 1901." It appears that there was in the treasury of Tatnall county at that time the sum of $12,500 available for the purpose of paying in part for the construction of the court house. On May 28th the ordinary passed and entered on his minutes an order reciting the fact that as the grand jury at the April term, 1901, of the superior court, in addition to authorizing the levy of $1 as taxes on each $100 worth of taxable property in the county for the purpose of raising the state and county taxes for the year 1901, also authorized a levy to raise a sufficient fund to build and erect a new court house, it was ordered that, in addition to such taxes for ordinary purposes, an amount be added thereto "sufficient to raise and pay for the erection of a new court house for said county; *** that at the next regular September term of Tatnall court of ordinary, 1901, that the ordinary proceed to assess the proper rate to raise all the necessary funds for county purposes, *** and also to assess an extra per cent. or rate to raise a court-house fund sufficient to pay for the erection and building of a new court house for said county." It also appears that subsequently to the date of this order it was ascertained that the taxable property of Tatnall county for the year 1901 amounted to $3,712,745, and that the tax rate for the year 1901, including state and county taxes, and the fund of $15,500 necessary to be raised during the year 1901 to build the court house, would fix the tax rate at $1.30 on each $100 of property values in the county. On the 12th of June, before any bids were received, the Manly Building Company submitted to the ordinary a modification of the original specifications, which contemplated the use of less expensive material in certain particulars named, and reduced the size of the rooms in the proposed building as they appeared in the original plans, etc. Two sealed proposals were received for the construction of the building under both the original and the modified plans. One of these was from Barber & Thurman, offering to construct the building under the original plans for $35,587, or $29,388 under the modified plans. The other was from the Manly Building Company, proposing to do the same work under the original specifications for $34,987, and under the modified plans for $27,750, and offering, in addition, to repair and repaint the common jail of the county without extra charge. Having considered these proposals, the ordinary awarded the contract to the Manly Company at the sum proposed by that firm under the modified plans and specifications, and the formal contract was executed; the contractors furnishing a bond in the amount provided by law, giving as security a surety company authorized to do business in this state. Following the execution of this contract the old court house was moved, the contractors entered upon the work, purchased large quantities of material, put a force of hands to work preparing the foundations, and expended large sums of money in preparing to execute the contract, etc. These and other facts were made to appear to the judge at the hearing. He decided that the notice inviting sealed proposals was, in law, insufficient, and that therefore the contract between the county and the Manly Company was invalid. He further ruled that the changes made in the plans and specifications were material and unauthorized, and that the ordinary could not let the contract, after making these changes, without readvertising for proposals; and an injunction was granted restraining the defendants from performing and carrying out the contract, and from building the court house under the contract which had been executed. He, however, refused to enjoin the ordinary from raising and levying a tax sufficient to construct the court house, but adjudged that the tax levy sufficient for that purpose must be made before any contract for the building should be let. The Manly Company excepted, and assigned as error the ruling that the notice did not state the time and terms of payment with sufficient fullness; the judge ruling that...