Marion County v. Foxworth

• Decision Date: 29 February 1904
• Citation: 83 Miss. 677,36 So. 36
• Court: Mississippi Supreme Court
• Parties: MARION COUNTY v. HENRY C. FOXWORTH

36 So. 36

83 Miss. 677

MARION COUNTY v. HENRY C. FOXWORTH

Supreme Court of Mississippi

February 29, 1904

FROM the chancery court of, first district, Marion county. HON STONE DEAVOURS, Chancellor.

Foxworth appellee, was complainant, and Marion county, appellant defendant in the court below. From a decree in complainant's favor, defendant appealed to the supreme court. The opinion of the court states the facts.

Reversed and remanded.

Mounger & Mounger, for appellant.

The pretended contract upon which appellee bases his claim to escape the forfeiture and recover the full contract price was signed by Lewis, president of the board of supervisors, not entered on the minutes of the board of supervisors, and the county was not bound by the writing signed by Mr. Lewis. There was only one contract made by appellee with appellant Marion county, to wit, the contract entered upon the minutes of the board, accepting appellee's bid to build the bridge for $ 16,000 upon condition that he finish and deliver it by September 15, 1897.

It would not have been an order on the minutes of the board if the instrument of writing referred to in the order had been filed with the clerk. There is no provision of law for the filing of such instrument, as there is for filing plans and specifications for bridges. Moreover, there is no allegation in the bill of complaint that the instrument signed by Lewis is the one referred to in the order of the board of supervisors.

The board of supervisors could not delegate to Lewis the authority or power to make a contract with appellee or to release him from the time limit. Code 1892, § 344. Benton County v. Patrick, 54 Miss. 240; Dixon v. Green County, 76 Miss. 809.

An express contract must be shown. 7 Am. & Eng. Enc. Law (2d ed.), 946, and this express contract must be shown by an order on the minutes of the board of supervisors. Benton County v. Patrick, 54 Miss. 340; Dixon v. Greene County, 76 Miss. 794; Groton Co. v. Warren County, 80 Miss. 214.

There is no question of ratification here. The only question is whether the contract was originally made by order on the board's minutes. The appellee cannot recover $ 1,110 withheld and refused him by the county because the only contract entered into between him and appellant bound him to complete and deliver the bridge by the 15th day of September, 1897, which, according to the pleadings, agreement of counsel and proof, in the case he did not do within 111 days of that time, exclusive of an extension of time granted by the board.

The bill alleges that by virtue of a proposition, contained in a letter to the board, the board of supervisors contracted with appellee to do the extra work and furnish the extra material. The answer admits that the board entered into a verbal contract with appellee to do the extra work, but denies that any such order was entered on the minutes of the board.

The letter to the board submitted a proposition to do certain extra work at certain prices, but the order of the board, the only one on the subject, simply recites "that the plans and specifications submitted by the contractor be adopted." There is nothing in the order to show an agreement on the part of the board to pay appellee anything for doing extra work or for extra material. This extra work, as it is termed, consisting as it does of building a fender for the protection of the bridge above and a rest pile below for the end of the bridge to rest on when swung open after completion, was public work of the county separate from the building of the bridge, and should have been let out to the lowest bidder, according to Code 1892, § 340.

There is an agreement of counsel that this extra work was not advertised. The bill of complaint alleges that, as a matter of law, it was not necessary to advertise it, and it appears from the depositions that it was not advertised.

Then, there was no advertisement of the extra work and no contract on the minutes of the board of supervisors with appellee to do this extra work, both of which was necessary. Code 1892, § 344. Benton County v. Patrick, 54 Miss. 240; Dixon v. Greene County, 76 Miss. 794; 80 Mass. 214.

J. N. Flowers, assistant attorney general, on same side.

In the first place, we venture to suggest that the rule has not been firmly established by this court that a board of supervisors can amend or alter, even by an order duly entered upon its minutes, a contract required by law to be advertised and let to the least responsible bidder. The rule is recognized in Groton Co. v. Warren County, 80 Miss. 214; but that decision is based upon Dixon v. Greene County, 76 Miss. 794, and Board v. Patrick, 54 Miss. 240; and the two Mississippi cases cited in the Warren county case refer back to Carroll v. Tishomingo County, 28 Miss. 38.

In the last named case the court said: "Having authority to make the contract in the first instance, they (the board) had authority to modify or vary its terms either as to the work, the payment of the money, or as to the person to receive the payment." But in that case the court was discussing a claim based upon a contract which did not require publication. The board of police had authority to make, and did make, the original contract in the same way by which the court said it could be amended or altered. This decision was cited with approval in Crump's case, 52 Miss. 107; but in this case the claim was based on a contract not required to be made after public notice given.

The decision in Patrick's case, 54 Miss. 340, was also upon a claim based upon a contract for building a court house, and the law did not then require that notices should be given before such contracts were let, though the law was different as to bridges. See §§ 1368, 1369, 2376, code of 1871.

The first case in which this court applied the law announced in these former decisions to a claim based on a contract required by law to be advertised and let publicly to the lowest bidder is Dixon v. Greene County, 76 Miss. 794, and the decision in that case is based upon the decisions in the earlier cases above cited without any reference to or consideration of the fact that the said former decisions were on contracts not required by law to be let publicly to the lowest responsible bidder after notice given as provided.

Nor do I find that this suggestion was made to the court in the Dixon case or in the more recent one from Warren county.

The truth is, this law found its way into our decisions when contracts requiring no advertisement were under consideration. It can be reasonably said that in such cases the board can amend or alter its contract in the same manner in which the law requires the contract to be made in the first instance. This is very plain law and ought to be applied to such contracts as the one now in hand. The board had authority to make the contract in the first instance in a manner provided by law, and it can amend or alter this contract only in the same manner.

It may be reasonably supposed that the law requiring all public works to be let to the lowest responsible bidder after three weeks public notice by advertisement in a newspaper published in the county was enacted to cure evils resulting from careless business methods on the part of the county boards. The plans are now required to be on file when the advertisement is made, and the contract must be let to the lowest responsible bidder. If such requirements are carried out to the letter there is little room for collusion, for the taxpayers can see what work is to be done and can judge as to the good faith, good business and wisdom of the contract made. But this safeguard is destroyed if the board has the power, after one advertisement is made and the contract let, to proceed without further notice to make any change that may be agreed upon between the board and the contractor.

It was never intended by the lawmakers that the original contract properly entered into after legal notice, should satisfy the law as far as public notice is concerned for all time, and that after this is properly done, then the door is open for as many contracts in connection with the original one to be entered into as the judgments or whims or the interest of the board and contractor may dictate.

It is not intended that the advertisement should be treated as a mere propitiation to the law in this regard as a mere license to act freely, as simply a disposition of an embarrassing restriction. We do not think that it was ever intended to be held by this court that, the original contract entered into should constitute a nucleus around which other contracts can be indiscriminately clustered. If this be true, then no special attention might be given to the first contract, because the work really to be done depends upon the changes and additions to be made as the work progresses. The advertisement removes the handicap, and the board is then left to do as it pleases. The public letting of the contract would be simply a grand stand play to satisfy the people and their law.

Questions of raising funds are always considered in connection with such contracts, and are always a factor in the mind of the taxpayer in determining whether he shall object to the issuance of bonds. If it is the law that the contract can be changed without public notice given simply by an order spread on the minutes of the board, then the amount of the bid will furnish no measure of the cost of the work except as fixing the minimum.

Nothing is better settled than that the board of supervisors, in acting for the county, is an agent acting under special and limited authority; that every person dealing with the board as the county's representative is charged with notice of the special and limited powers under which...