Noxubee County Hardware Co. v. City of Macon

• Decision Date: 25 March 1907
• Docket Number: 12,554
• Citation: 43 So. 304,90 Miss. 636
• Court: Mississippi Supreme Court
• Parties: NOXUBEE COUNTY HARDWARE COMPANY v. CITY OF MACON

43 So. 304

90 Miss. 636

NOXUBEE COUNTY HARDWARE COMPANY v. CITY OF MACON

No. 12,554

Supreme Court of Mississippi

March 25, 1907

FROM the chancery court of Noxubee county, JAS. F. MCCOOL Chancellor.

Noxubee County Hardware Company, appellant, was the complainant in the court below; the city of Macon, appellee, was the defendant there. From a decree in defendant's favor dissolving an injunction and dismissing the bill, the complainant appealed to the supreme court.

The Noxubee County Hardware Company, a mercantile corporation sued out an injunction against the city of Macon, a municipality, owning and operating its electric light and water works plant, to restrain the municipality from purchasing certain articles of merchandise from one Holberg the owner of a hardware store, a merchant of Macon, and an alderman of the city. The bill alleged that partiality was shown by the board of aldermen of the city toward Holberg as against complainant, and that, although different articles could have been purchased from complainant at a cheaper price than from Holberg, the board of aldermen made constant purchases of merchandise necessary for the electric light and water works plant, at much higher prices, from Alderman Holberg; and that the purchases, so made, were in violation of sec. 109 of the state constitution, which is as follows:

"No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term."

The bill further alleged that the purchases made by the municipality from Holberg were not only violative of the state constitution, but prevented competition, and by thus shutting out other merchants and not allowing complainant, which had formerly sold this class of merchandise to the city, to enter into competition for the sale of goods needed by the city, the city was forced to pay an excessive price for merchandise so purchased; and the complainant, being a taxpayer of said city, was injured thereby.

The city answered the bill, stating that the merchandise needed by it in its electric light and water plant, were purchased in the open market, and denying that exorbitant rates were paid for such articles, and it is alleged, further, that the superintendent of the electric light and water plant, in charge of the same for the city, purchased such articles of merchandise as were necessary for the plant, without being "authorized by any law passed or order made by the board," but purchased them in open market, and purchased from Holberg for the reason that the articles could be purchased at a rate of fifty per cent to one hundred and fifty per cent cheaper than similar articles could have been purchased from the complainant, and for the additional reason, that complainant had refused to credit the city. The answer further averred that the Noxubee County Hardware Company's secretary, one Horton, was also a member of the board of aldermen, and that, therefore, complainant was estopped from bringing this suit. The temporary injunction previously granted was dissolved upon motion of the defendant, and complainant taxed with a solicitor's fee; and from this decree the appeal was taken.

The appellee sought to invoke Code 1906, § 3446, which went into effect after the cause of action arose.

Decree reversed.

T. W. Brame, and Miller & Baskin, for appellant.

The lower court dismissed the complainant's bill on the ground that the law should leave persons in pari delicto where it found them, and that, as the secretary of the complainant company, Horton, was a member of the board of aldermen, the complainant was not in a position to bring this suit; complainant being barred under sec. 109 of the state constitution.

We contend that the lower court's view of the law was incorrect. The principle that the law will leave persons in pari delicto where it found them, cannot be applied to the extent that an injunction against the purchase by a city from an alderman, in violation of state constitution, sec. 109 will be denied, although the complainant's manager and secretary, an alderman, had made sales to the city; the interest of the public alone being considered. Houston v. Building Association, 80 Miss. 40, 31 So. 540, 92 Am. St. Rep., 565; O'Connor v. Ward, 60 Miss. 1037.

Code of 1906, § 3446, can have no restrospective effect, hence can have no application in this case.

George Richardson, and F. A. Critz, for appellee.

The facts show that this is a controversy between the owners of two hardware mercantile stores in Macon, one owned and conducted by appellant, the other owned and operated by Holberg; that Holberg is a member of the board of aldermen of the city, and that one Horton, another member of the board of aldermen, is also secretary and treasurer and stockholder of the appellant. The sworn answer to appellant's bill states that such goods as were purchased by the city of Macon from Holberg were purchased at a rate of from fifty to one hundred and fifty per cent cheaper than similar goods could have been purchased by the city from appellant.

When a party seeking the intervention of equity has been attempting to secure his ends by means resembling those which he seeks to enjoin, he will be denied the relief. 77 Hun (N. Y.), 215. "He who...