137 Ky. 108 | Ky. Ct. App. | 1909
Opinion op the Court by
— Reversing.
Tlie Louisville school board adverstised for bids for the brickwork of the Duker Avenue school building, and it was specified in the advertisement that the bidders should state what they would charge .if Louisville brick were used, and what they would charge additional if Akron brick were used. A number of bids were made for the work, among others one by Jacob Bornstein, in which he offered to do the work for $9,600, and there was added to the foot of his bid a statement that, if Akron brick were used, he would charge $40 per 1,000 additional. George Hoertz also made a bid in which he offered to do the work for $11,923 with Louisville brick, and a certain higher sum if Akron brick were used. John Hoertz was a member of the school board and also chairman
Bornstein then brought this suit to enjoin the school board from having the building constructed by Hoertz upon the ground that the committee had capriciously rejected his bid, although he was the lowest and best bidder, and that the bid made in the name of George Hoertz was in fact the bid of John Hoertz, the chairman of the committee, and that the school board was making a contract with one of its own members for the building of the sclioolhouse at a higher price than the lowest and best bid, and was thus wasting $2,323 of the school money. The application for a preliminary injunction was refused; answers were filed. On final hearing his petition was dismissed, and he appeals.
Bornstein sued as a taxpayer, and as such he might maintain an action to prevent the waste of the school fund in which he was interested, or to prevent the school board from making a contract with one of its own members for the work. He made the school board, John Hoertz, and George Hoertz parties to the petition. The house was built pending the action, and was about completed when the last depositions
But, passing by this question, we come to the main question in'the case: Was the bid made in the name of George Hoertz really made by John Hoertz, a member of the school board, and chairman of the building committee? Sections 2975, 2976, Ky. St. (Russell’s St. secs. 854, 855), among other things provide as follows:
“No person shall be eligible to this office who, at the time of his election, is directly or indirectly interested in any contract witli the board, or who holds any office of trust, agency or salary with any corporation which holds any contract with the board, or who is any way benefited by the appropriations of the board; or whose father, son, brother, wife, daughter or sister is employed as teacher or as professor, or in any other capacity by said board, or in any of the public schools, or who is, directly or indirectly, in
*If, after election, any member of the board should become a candidate for nomination or for any office or agency, the holding and discharging of which would have rendered him ineligible before his election, or should he remove out of the district for which he was chosen, or should he do or incur anything which would have rendered him ineligible for election, or should any of the relatives above specified be employed by the board, his office shall become vacant and be filled as herein directed.”
It will thus be seen that the statute makes any person who is directly or indirectly interested in any contract with the board ineligible for election, and ■ declares that if after election he shall become directly or indirectly interested in any such contract his office shall become vacant. By section 2768 Ky. St. (Russell’s St. sec. 556), members of the general council are forbidden to be directly or indirectly interested in any contract with the city, and under this provision it has been held that, if a member of the council is interested in any contract made with the city, the contract is void. Nunemacher v. Louisville, 98 Ky. 334, 32 S. W. 1091, 19 Ky. Law Rep. 933; Jacques v. Louisville, 32 Ky. Law Rep. 574; Bradley Gilbert Co. v. Jacques, 110 S. W. 836, 33 Ky. Law Rep. 618. Section 2768, Ky. St., provides no penalty for its violation, while section 2976 provides that the violation of its provisions shall vacate the office. The providing of this severe penalty shows that the Legislature intended to forbid the members of the school board from being interested directly or indirectly in the contracts made by it; and such contracts are no less
John Hoertz had been for 20 years a member of the school board. During this whole time he had been making contracts with the school board for the erection of buildings. He was a contractor by business. For. a while he made his contracts in the name of one Neumeyer, who was his partner. After Neumeyer’s death, he made contracts in the name of others. About two years before this he had built for the school board in the name of this same George Hoertz the Sylvia Avenue Schoolhouse. He had a son, whom we shall call for distinction. George, Jr., the other George Hoertz, whom we shall call George, Sr., being a cousin of his, 66 years old, living at Beechmont, not known among the contractors of Louisville as a contractor of brickwork, and who had done no contracting of brickwork for himself in four or five years except to remodel a house for his daughter-in-law. "When the advertisement appeared for the brickwork for the Duker Avenue Schoolhouse, George, Jr., went to his father and asked him if he Avas going to bid on the job; the father and son being-then partners in contracting. He and his son say he told his son, “No,” that since the new board had come in they had agreed that no member of the board should do any contracting, and George, Jr., then went to see George, Sr., without, as he says, any suggestion from- his father. A bid was prepared, and the name of George Hoertz, Sr., was signed to it by John Hoertz. The proof as to the signature to this bid leaves no doubt in our mind that this is the writing- of John Hoertz. When this bid was accepted by the committee, Bornstein began this proceeding, and
When the depositions closed, there was something over $2,000. still payable by the school board, and there were some bills outstanding. But, although $9,000 had been collected, no account had been asked by George Hoertz, Sr., of George Hoertz, Jr., and none had been rendered him. Before this work was begun, John Hoertz and son had built some cottages on Brook street with certain bricklayers. They had taken their force from there to C. T. Dearings, and added a story to his printing establishment, and these hands were taken from there to the Duker Avenue school building. John Hoertz says that he was doing nothing while George, Jr., was building
George Hoertz, Sr., does not know who wrote the bid to the Louisville school board, does not remember if he signed it himself, does not know the dimensions of the building, did not have any bills for the material presented to him, does not know whether the bills were paid by cash or check, or how much material was used, or how many men worked on the building, or the names of any of the men, or the average pay roll, or when or where or how the men were paid off, or how much was paid for labor or material, or how much the time of his foreman came to. To say that a man who had undertaken a contract involving over $11,000 could be so ignorant about it as George Hoertz was, is to say either that he was lacking in
What, then, are the rights of the parties? The house was built with money furnished by the school .’board. It has been accepted by the board, and, though the contract was void, the money of the board went into the house, and the board has the house. But the court will not allow either of the parties who were parties to the transaction with the school board to make a profit out of it. And we are satisfied from the record that the money paid by the board did not go into the house at least to the amount of $2,300. Under the evidence, the circuit court should have entered a judgment enjoining the school board from paying to George Hoertz, Sr., $2,300 of the contract price, and adjudging John Hoertz and George Hoertz, Sr., to pay the cost of the action. If, on the return of the case to the circuit court, it shall appear that the whole contract price for the schoolhouse has
Judgment reversed and cause remanded for a judgment, and further proceedings consistent herewith.