"In this cause the appellee, J. N. McCammon, Inc., plaintiff below, sued the appellant, Stephens County, defendant below, for damages growing out of the alleged breach of a contract, by the terms of which it is alleged the plaintiff was employed by the commissioners court as an architect to prepare plans and specifications for, and to supervise the proper construction of, a combination courthouse and jail in said county. The plaintiff recovered a judgment for the damages alleged, and in the original opinion by this court, of date March 21st, 1930, we reversed the cause upon the sole point that the trial court should have permitted the defendant, Stephens County, to withdraw certain pleadings and urge a plea in abatement, based upon the contention that the plaintiff, appellee here, had failed to pay its franchise
tax, and was, therefore, without authority to institute and maintain the suit in the courts of this state. There is attached hereto and made a part hereof this court's original opinion reversing the judgment of the trial court.
"The cause is now pending in this court upon motion for rehearing by the appellee, and that motion for rehearing is accompanied by a certificate from the Secretary of State, showing that the appellant, a corporation, since the rendition of our original opinion, has paid its franchise tax, and by reason thereof had its right to do business in Texas revived as per the certificate of the Secretary of State, which is as follows:
"`The State of Texas
"`Department of State
"`I, Jane Y. McCallum, Secretary of State of the State of Texas, hereby certify that J. N. McCammon, Inc., a domestic corporation of Dallas, Texas, has this day paid all franchise taxes and penalties due by it to the State of Texas from May 1, 1927, to May 1, 1931, amounting to $68.50 and by reason thereof its right to do business has this day been revived and notation to that effect has been entered on the ledger account of such corporation.
"`[Seal.]
"`In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in the City of Austin, this 1st day of April, A. D., 1930.
"`Jane Y. McCallum
"`Secretary of State.'
"In passing upon this motion for rehearing we are, therefore, presented with the question of whether we have the authority to act upon the information contained in the certificate, or must look only to the record proper as brought to this court. Of course, the fact evidenced by the certificate did not exist at the time of the trial of the lawsuit in the court below, nor at the time this court rendered its original opinion. The certificate appears for the first time in this court attached as an exhibit to the appellee's motion for rehearing. This statement is made in view of the following question to be propounded, viz:
"1. Can this court act upon the information contained in said certificate and by reason thereof regard as moot the question arising from the failure of said corporation to pay its franchise tax, and thereupon be under the duty or have the authority to pass to a consideration of the additional assignments upon which the appeal is predicated?
"As a basis for the other questions this court deems it necessary to propound to the Supreme Court, the following additional statement of the record in this cause is made. The appellee, J. N. McCammon, Inc., brought this suit against Stephens County, alleging that on September 22nd, 1924, the county, acting through its commissioners court, contracted with the Mid-West Company, Inc., a Texas corporation which thereafter merely changed its name to J. N. McCammon & Co., Inc., whereby it was agreed that the Mid-West Co., Inc. would, for a consideration, perform for the county certain architectural work and services pertaining to the making and furnishing of plans and specifications for a courthouse and jail to be erected in that county, and to supervise the work or construction thereof. This contract is found on page 77 et seq. of the statement of facts, and is here referred to and made a part of this certificate.
"The stockholders of the Mid-West Co., Inc. were J. N. McCammon, a professional architect, A. D. McCammon, his wife, and S. J. McFarland, a banker. At a meeting of said stockholders on June 29th, 1925, the name of the corporation was changed to J. N. McCammon & Co., Inc., the stockholders remaining the same and the charter being unchanged, except as to its name. The contract was signed by the contracting parties in the following manner:
"`County of Stephens
"`By E. F. Ritchey
County Judge
"`H. B. Downing
"`W. I. Hunt
"`J. W. Horton
"`S. A. Reynolds
"`The Mid-West Company, Inc
"By J. N. McCammon
President.'
"The first article of the contract is as follows:
"`Article 1. The architect's services. The architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings; the drafting of forms of proposals and contracts; the issuance of certificates of payment; the keeping of accounts, the general administration of the business and supervision of the work.'
"This provision of the contract is here inserted, because it especially reflects the nature of the services which the county sought and which Mid-West Company, Inc., and its successor undertook to perform. But it is desired that each provision of the contract bearing upon the questions propounded be considered in this connection, since the contract as a whole has been made a part hereof. Further, the plaintiff in his petition sought the recovery of the sum of $21,500.00 and, less some credits sought and allowed, recovered a judgment for the sum of $18,500.00, with 6 per cent interest from its date.
"The purpose for which the appellant corporation was formed is to be found in subdivision
45 of article 1302, R. S. 1925, and reads as follows:
"`The purposes for which private corporations may be formed are: * * * 45. To design, purchase and sell steel and iron and other metal products and the manufacture of any or all of such products, and to design, sell, construct and erect engineering and architecture [architectural] structures, and to contract for the construction and erection of such structures.'
"An architect's work being professional in its nature, and subdivision 45 above embracing no express authority to a corporation to perform the functions `the general administration of the business and supervision of the work' stipulated for in article 1 above, and as contemplated by the contract as a whole; and since article 2368, R. S. 1925, provides that: `No commissioners court shall make a contract calling for or requiring the expenditure or payment of $2000.00 or more out of any fund or funds of any county * * * without first submitting such proposed contract to competitive bids'; and since the contract was not awarded on competitive bids, we find it necessary to certify for your decision the following additional questions:
"2. Had Stephens County the authority in law to enter into the foregoing contract with the ...
