Mitchell v. Walden Motor Co.

Decision Date18 November 1937
Docket Number4 Div. 891
Citation177 So. 151,235 Ala. 34
PartiesMITCHELL et al. v. WALDEN MOTOR CO. et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.

Bill in equity by Walden Motor Company and Dan W. Hollis, against J.P. Mitchell, as Chairman of the Court of County Commissioners of Henry County, Henry County, and others, to enjoin purchase of property. From a decree overruling a motion to dissolve temporary injunction and overruling a demurrer to the bill, respondents appeal.

Reversed rendered, and remanded.

Farmer Merrill & Farmer and G.M. Harrison, all of Dothan, and E.C Glover, of Abbeville, for appellants.

Halstead & Smith, of Headland, for appellees.

GARDNER Justice.

This appeal involves the proper construction of the local acts for Henry county concerning the office of road supervisor and his duties in relation to the public roads. Local Acts 1932 (Special Session) p. 89; Local Acts 1935, p. 234.

The litigation relates to the purchase by the county of two 1 1/2-ton motortrucks for use on the county roads. No fraud or bad faith is charged, but it is contended the purchase was violative of the terms of the above-noted acts, which require, as complainants insist, competitive bidding in all such purchases, and the acceptance by the county of the lowest pecuniary bidder.

But we find ourselves unable to agree. The first act creating the office of road supervisor (Local Acts 1932, supra), following rather closely that affecting the adjoining county of Houston (section 13, Local Acts 1935, p. 71; Poyner v. Whiddon (Ala.Sup.) 174 So. 507), did contain, in section 5 thereof, the requirement that contracts therein specified, which exceed the amount of $50, should be let to the "lowest responsible bidder." And as to a contract in excess of $250, some additional notice was provided. But this section 5 of the original act was amended by section 3 of the Act of 1935 (Local Acts 1935, p. 234, 235) in the following manner: "Section 3. That said Section 5 of said Act be and the same is hereby amended so as to read as follows: Section 5." As rewritten, certain changes were made as to the purchases by the road supervisor so as to permit a purchase by him in open market of material and the like when less in amount than $10, and when in excess of that sum but less than $50 a requisition therefor must be procured from the probate judge who must indorse thereon the number of bids required and the purchase made from "the lowest bidder as indicated by the bids." Each such bid "must be attached to the succeeding monthly pay roll along with the sworn itemized statement of the seller."

Following next is the provision for posting two weeks' written notice on the bulletin board at the courthouse for bids when the amount is more than $50 and less than $250, and when in excess of the latter sum additional notice was required by publication in some paper in the county, posting on the bulletin board, and by registered mail addressed to at least three dealers in the material to be purchased. All notices were to be given by the road supervisor and filed with the court of county commissioners. This section, as thus rewritten, contains some detail exceptions not here necessary to note.

But significantly the provision as to "the lowest responsible bidder," found in section 5 as originally written, is omitted in the amendatory act. As said section now appears, there is no such requirement in purchases exceeding $50 in value. The general rule as to the construction of statutes thus amended is well settled and given recognition in Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 71 So. 724, wherein is the following quotation here applicable: "Generally speaking, where a statute is amended 'so as to read as follows,' the amendatory act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment *** that so much of the act as is omitted is repealed." See, also, 59 Corpus Juris 925-6.

Complainants insist that though the requirement in the original act that the purchase must be from the lowest responsible bidder was not embraced in the section as amended by the act of 1935, yet the lawmaking body intended no repeal of such requirement, and that the court should construe the two acts as thus jointly embracing this requirement.

This argument is based upon the holding in some of the authorities that the rule may not be so absolute as not to yield to a contrary intention when found in the nature of the case, in the language employed or in the course of contemporaneous legislation on the same subject. See authorities cited in notes to 59 Corpus Juris 926. Accepting, for the purpose of this case only a, such argument as applicable here (concerning which no definite commitment is now necessary), yet it would place complainants in no better position.

It is clear enough the presumption is that the omitted provision is repealed, and the single question is, What have we here to so clearly demonstrate a legislative intent to the contrary as to overcome this strong implication for repeal? Section 5 of the original act was rewritten with apparent care. It bears no outward evidence of oversight or a want of proper attention to the subject-matter. In detail form provisions are made for purchases involving given sums. Complainants argue that to so construe this amended section reaches an absurd result. But competitive bidding and any requirement to accept the lowest bidder is purely a matter for legislative consideration. If not required by statute, competitive bidding is not necessary, and a statute so requiring is to be strictly construed, and not extended beyond its clear implication. 44 Corpus Juris 325. And, in the absence of any such statute, the contract may be made by any practicable method that will safeguard the public interest. 44 Corpus Juris 324; Carson-Cadillac Corp. v. City of Birmingham, 232 Ala. 312, 167 So. 794.

Section 5, as amended, discloses a purpose to have competitive bids offered by various dealers. But this does not necessarily mean that it was the intent the members of the court of county commissioners, who are considered the "guardians of the interest of the county" (Citizens' Bank & Security Co. v. Commissioners' Court, 209 Ala 646, 96 So. 778, 779), are to be limited in their power of contract to the lowest responsible bidder. Even though a municipality has called for bids, the contract need not be let to the lowest bidder in the absence of a law so requiring. 44 Corpus Juris 341. So here the Legislature may have considered the matter of competitive bids helpful to the commission in making the purchase, without at the same time wishing to limit their power to contract to the lowest bidder. As...

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11 cases
  • Shiv-Ram, Inc. v. McCaleb
    • United States
    • Alabama Supreme Court
    • December 30, 2003
    ...314 So.2d 51 (1975), quoting with approval the first paragraph of the excerpt from Allgood set out above. In Mitchell v. Walden Motor Co., 235 Ala. 34, 36, 177 So. 151, 153 (1937), this Court "The general rule as to the construction of statutes thus amended is well settled and given recogni......
  • Spring Hill Lighting & Supply Co., Inc. v. Square D Co., Inc.
    • United States
    • Alabama Supreme Court
    • April 14, 1995
    ...Ford Tractor Co., 287 Ala. 77, 248 So.2d 121 (1971); Townsend v. McCall, 262 Ala. 554, 80 So.2d 262 (1955); Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151 (1937); and Carson Cadillac Corp. v. City of Birmingham, 232 Ala. 312, 167 So. 794 (1936), all denying injunctive relief, with K......
  • Advance Tank and Const. Co., Inc. v. Arab Works, 89-7443
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 5, 1990
    ...Int'l Telecommunications Systems, 359 So.2d at 367; McDonald, 287 Ala. at 86, 248 So.2d at 127; Mitchell v. Walden Motor Co., 235 Ala. 34, 38, 177 So. 151, 154 (1937) (hereinafter "Walden "); Carson, 232 Ala. at 317, 167 So. at 798 (1936); Inge v. Board of Public Works, 135 Ala. 187, 33 So.......
  • Crest Const. Corp. v. Shelby County Bd. of Educ.
    • United States
    • Alabama Supreme Court
    • December 23, 1992
    ...awards based on relative degrees of "responsibility," quality is a consideration when determining responsibility. Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151 (1937); see also Arrington v. Associated General Contractors of America, 403 So.2d 893 (Ala.1981), cert. denied, 455 U.S. ......
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