Sterrett v. Bell, 14410

• Decision Date: 25 May 1951
• Docket Number: No. 14410,14410
• Citation: 240 S.W.2d 516
• Parties: STERRETT et al. v. BELL et al.
• Court: Texas Court of Appeals

Page 516

240 S.W.2d 516

STERRETT et al. v. BELL et al.

No. 14410.

Court of Civil Appeals of Texas, Dallas.

May 25, 1951.

Henry Wade, Dist. Atty., Julien C. Hyer, Asst. Dist. Atty., George W. Hutchison and J. Hart Willis, all of Dallas, for appellants.

Joe A. Worsham, Jos. Irion Worsham, and Worsham, Forsythe & Riley, all of Dallas, for appellees.

CRAMER, Justice.

This proceeding was filed by Tyree L. Bell and 37 other property-owning taxpayers of Road District No. 1 of Dallas County, Texas, as plaintiffs, against the County Judge and four County Commissioners of Dallas County, who together compose the Commissioners' Court, and as such, the governing body of Road District No. 1, as defendants, seeking an injunction against defendants to prevent them from receiving and opening bids; from letting a contract, and spending (on repairs, etc., to Belt Line Road) $3,300,000 of a $22,500,000 bond issue authorized by the qualified voters of such Road District, based on the allegation that the defendants were proceeding in an illegal manner.

The facts are not seriously in dispute. In the order calling the election it is provided: 'It will be the policy of the Commissioners' Court to do all construction work by contract on a competitive bidding * * *.' (With one exception not material here.)

After the electorate authorized the issuance of the bonds the Commissioners' Court furnished information to bidders for clearing and grading, widening, drainage structure, permanent paving and bridges on Belt Line Road (approximately 90 Miles of road) by a three to two vote, and sought bids for such work on the following basis, to wit:

'(1) Reimbursement of all expenses necessary to performance of the work, but excluding any home office overhead expenses or interest on invested capital.

'(2) A fee of ___% of all costs reimbursed under subparagraph First, above, which fee shall cover all profit, home office overhead expense and interest on invested capital.'

In the information to bidders it was stated that the projects would require:

'(1) Removing and replacing culvert pipe.'

'(2) Asphalt stabilized base.'

'(3) Reconstruction, widening, and strengthening flexible base, and asphalt surfacing.'

'(4) Flexible base construction.'

The bids as shown by the above were not on the cost of the project, but only on a supervision fee. The information to bidders also provided, material here, that:

'(1) General: Construction of the roads and bridges listed in the proposal at the earliest possible time is essential to the citizens of Road District No. 1 of Dallas County, Texas. The current world crisis and the United States rearmament program make it essential to proceed with the work involved immediately while materials and labor are available for construction of Belt Line Road, which consists of approximately 90 miles of roadway. Time is an essential factor in the matter of contracting for such improvements in view of the present trend in prices of materials and labor and that several months time would be required to make detailed surveys, investigations, plans, specifications and the exact determination of the quantities of work required for such improvements, and that during the time required for such detailed surveys, plans, etc., it is considered probable that required materials may become very scarce and be placed under restrictive controls, which would hinder and make difficult the completion of the desired improvements, and that prices of such materials may be substantially higher, if available at all. It is therefore considered to be to the best advantage of Road District No. 1 of Dallas County, Texas to enter into a contract with a reliable, experienced contractor who can proceed with the work while it is still under planning.

'The contract with a contractor for the construction of these improvements in this manner must of necessity provide that the contractor furnish the materials, labor, supervision, equipment, tools and incidentals necessary to perform the work and be reimbursed for the actual cost thereof plus a fee for his services. Under the provisions of such a contract, the contractor will be enabled to place orders and get commitments at the present time and at present prices for required materials and will further be enabled to allocate equipment and experienced personnel for such work before it becomes necessary to obligate such equipment and personnel for other work or to become involved in restrictive obligations.' And,

'It is understood that the amount of money available for the work is approximately $3,300,000.00.'

It is also provided:

'* * * The contractor further will purchase materials in the open market at the lowest price obtainable.' And,

'Equipment Rentals: To be approved by the Commissioners' Court.' And,

'(16) Audit: The Road District will audit the accounts of the contractor at all times, and the contractor will furnish the auditor with adequate facilities for his work.'

'(17) Defective Work: Any work not in accordance with the plans and specifications to be approved by the court, which is required to be replaced, shall be done at the sole expense of the contractor and the Road District will not reimburse contractor, or allow any fee on such rework.'

'(18) Payment: On the 10th of the following month the Road District will reimburse the contractor for all expenses incurred up to the end of the preceding month and a proportionate amount of the fee earned upon the presentation of original vouchers and payroll sheets.'

After hearing the evidence the trial court granted the temporary injunction prayed for by plaintiffs, fixed the amount of the bond which was made and filed, and thereafter the defendants duly perfected this appeal.

The parties will be designated as in the trial court. The defendants (appellants here) brief six points of error in substance as follows: (1) The trial court committed fundamental error in overruling their plea to the jurisdiction and motion to dismiss for the reason (a) plaintiffs had not requested and the district attorney had not refused to file the suit, and (b) it was also not shown that the Commissioners' Court had engaged in an illegal act; (2) committed material error in overruling their motion to dismiss called to the court's attention (a) before any evidence was introduced, (b) and at the conclusion of appellants' evidence, and (c) at conclusion of all the evidence; (3) material error in finding there were...