Wester v. Belote

• Citation: 103 Fla. 976,138 So. 721
• Parties: WESTER v. BELOTE et al.
• Decision Date: 23 December 1931
• Court: United States State Supreme Court of Florida

138 So. 721

103 Fla. 976

WESTER v. BELOTE et al.

Florida Supreme Court, Division B.

December 23, 1931

Suit by E. W. Wester against W. P. Belote and others, as and constituting the Board of County Commissioners of Duval County, and others. From an interlocutory order denying an injunction, complainant appeals and applies for an original injunction in the nature of a supersedeas.

Application denied, and the interlocutory order affirmed. Appeal from Circuit Court, Duval County; De Witt T. Gray, judge.

COUNSEL

J Turner Butler, of Jacksonville, for appellant.

Valz &amp Wise, Roswell King and John E. Mathews, all of Jacksonville for appellees.

OPINION

DAVIS J.

From an order of the circuit court of Duval county denying an injunction against the board of county commissioners, an appeal has been taken and the cause presented here on an application by complainant for an original injunction from this court in the nature of a supersedeas. Because of the public question involved, the cause has been advanced for hearing on the merits. See L. Maxcy v. Mayo, Com'r of Agriculture (Fla.) 139 So. 121, decided at the present term.

In July, 1931, the county commissioners advertised for bids for furnishing approximately 50,000 cubic yards of clean dredged oyster shell.

Bids were submitted by Atlantic Shell Company, Duval Engineering & Contracting Company, Jacksonville Sand Company, and Cleveland Johnson & Son. The contract was awarded to the Atlantic Shell Company at a price of 61 cents per cubic yard loaded on county lighters, f. o. b. company's dredge, and all the other bids rejected. This was on August 1, 1931, and on September 2, 1931, the appellant here, as a citizen and taxpayer of Duval county, filed his bill praying for an injunction enjoining and restraining the county commissioners and clerk of the circuit court from signing any county warrants paying for the material advertised for, a contract for which had been awarded to Atlantic Shell Company.

After hearing upon the bill, answer, and affidavits, the injunction prayed for was denied. It is the interlocutory order to that effect which forms the basis of this appeal.

Chapter 11917, Acts of 1927, which is section 2195, Comp. Gen. Laws, provides as follows:

'Competitive bids in counties with population of one hundred and fifty thousand or over where amount involved is over one thousand dollars.--In all of the counties of the State of Florida with a population of one hundred and fifty thousand or over, according to the last preceding census authorized by the Legislature of the State of Florida no contract shall be let by the board of county commissioners for the working of any road or street, the construction or building of any bridge, erecting or building of any house, nor shall any goods, supplies or materials for county purposes or uses be purchased when the amount to be paid therefor by the county shall exceed one thousand dollars unless notice thereof shall be advertised once a week for at least two weeks, calling for bids of the work to be done or for the goods, supplies or materials to be purchased by the county, and in each case the bid of the lowest responsible bidder shall be accepted unless the county commissioners shall reject all bids.

'Where the amount of contract or the price to be paid by the county is less than one thousand dollars, no advertisement or competitive bidding, as above required, shall be necessary.'

It is contended by appellant that the object and purpose of this statute is to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various forms; to secure the best values for the county at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the county, by affording an opportunity for an exact comparison of bids.

Laws of this kind requiring contracts to be let to the lowest bidder are based upon public economy, are of great importance to the taxpayers, and ought not to be frittered away by exceptions.

They originated, perhaps, in distrust of public officers whose duty it is to make public contracts, but they also serve the purpose of affording to the business men and taxpayers of the counties and other governmental subdivisions affected by them a fair opportunity to participate in the benefits flowing from such contracts, which are nowadays amongst the most important items of the present day business world.

In so far as they thus serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, they remove temptation on the part of public officers to seek private gain at the taxpayers' expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated. Hannan v. Board of Education, 25 Okl. 372, 107 P. 646, 30 L. R. A. (N. S.) 214; Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L. R. A. 353; Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14, 69 A. L. R. 689; Anderson v. Fuller, 51 Fla. 380, 41 So. 684, 6 L. R. A. (N. S.) 1026, 120 Am. St. Rep. 170; 3 McQuillan Municipal Corp. (2d Ed.) p. 858; Mazet v. City of Pittsburgh, 137 Pa. 548, 20 A. 693; Wells v. Burnham, 20 Wis. 112.

Accordingly, it has been generally recognized and held by the courts that it is the duty of public officers charged with the responsibility of letting contracts under the statute to adopt, in advance of calling for bids, reasonably definite plans or specifications, as a basis on which bids, may be received. Such officers, in view of such requirement, are without power to reserve in the plans or specifications so prepared in advance of the letting the power to make exceptions, releases, and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any favoritism is actually practiced or not. Neither can they include other reservations which by their necessary effect will render it impossible to make an exact comparison of bids. Clark v. Melson, 82 Fla. 230, 89 So. 495; Dillon, Municipal Corp., § 807, page 1211; 15 Corpus Juris, 550; 19 R. C. L. 1070; 3 McQuillan on Municipal Corp. (2d Ed.) pages 885, 886.

In Clark v. Melson, supra, it was held in effect by this court, in affirming an order of the circuit court of Duval county granting an injunction against payment of public moneys upon a contract to purchase paint for bridges in the county, that purchases of county materials which the law required to be advertised for on competitive bids under our statutes, should be predicated upon adequate specifications which afford some reasonable basis for a comparison of bids, in order that bids, when received, might be truly competitive in character by having them applied to the same things.

The prayer for relief in the instant case is predicated upon the same argument that was successfully urged in the Duval county case just cited. We are, in consideration thereof, asked to declare that the present contract awarded to the Atlantic Shell Company is void, because of the failure of the board of county commissioners of Duval county to observe the requirements of the statutes in regard to competitive bidding, in the particulars specified in the bill of complaint.

That a contract made by public officers in violation of the statutes requiring them to be let pursuant to competitive bids, to the best responsible bidder, is absolutely void, and that no rights can be acquired thereunder by the contracting party, is beyond question in this jurisdiction. Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14, 69 A. L. R. 689. And that payments under such a contract will be enjoined at the suit of a citizen and taxpayer of the affected county is also not to be denied under the decisions of this court. Anderson v. Fuller, 51 Fla. 380, 41 So. 684, 6 L. R. A. (N. S.) 1026, 120 Am. St. Rep. 170.

And it has even been held that, where illegal or void contracts have already been executed, and payments of money made by the public officers under them, a suit in equity lies at the instance of a citizen and taxpayer to obtain an accounting and recover the payments back for the benefit of the public treasury, when no other remedy is available. See Russell v. Tate, 52 Ark. 541, 13 S.W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193; Osburn v. Stone, 170 Cal. 480, 150 P. 367; Mahoney v. City and County of San Francisco, 201 Cal. 248, 257 P. 49; Mines v. Del Valle, 201 Cal. 273, 257 P. 530; Cathers v. Moores, 78 Neb. 13, 110 N.W. 689, 14 L. R. A. (N. S.) 298; Neacy v. Drew, 176 Wis. 348, 187 N.W. 218.

In the case at bar, no actual fraud or misconduct on the part of the county commissioners is alleged. The theory is that the contract awarded is absolutely void because violative of the statute, and that therefore it should be enjoined, because the specifications, being not in conformity with the statute as to certainty, the contract must fall with the insufficient specifications.

The notice (and specifications) upon which the contract was awarded, reads as follows:

'Legal Notices

'Bids Wanted

'Notice is hereby given that the Board of County Commissioners of Duval County, Florida, will receive sealed bids until 10 o'clock A. M. on Saturday, August 1st, 1931, for furnishing approximately 50,000 cubic yards of clean, dredged or dead oyster shell, delivered at the various unloading points...