Pilcher v. English

133 Ga. 496 | Ga. | 1909

Lumpkin, J..

(After stating the foregoing facts.)

The plaintiffs sought to enjoin the carrying out of a contract to build a court-house in Warren county. They attacked the noti.ce which was published prior to the execution of the contract, as deficient in several particulars, and contended that the contract based upon it was therefore illegal. They also attacked the contract on account of defects which it was claimed existed in it, and because it was contended that no sufficient fund had been provided for the payment which would be due under it, and that the tax levy which was made had been revoked.

It was urged that the published notice was illegal, because it did not specify even approximately what the cost of the courthouse should be, or what amount the commissioners proposed to expend in the erection of it. The Civil Code of 1895, §345, declares that whenever the contract is likely to cost a sum greater than $5,000, the proper officer shall give notice in the newspaper in which the sheriff’s advertisements are published, once a week for eight weeks, and by posting a written notice at the court-house door for a like time, “which notice and advertisement shall embrace such details and specifications as will enable the public to know the extent and character of the work to be done, and the terms and time of payment.” The argument was that the word “terms,” as here used, included qtrice. Section 344 provides for letting the contract to the lowest bidder, after the advertisement has been made. If the publication must specify the price at which the building is to be erected, then it would be useless to have competitive bids, and nothing would remain except for the contractor to accept or reject the price so fixed. The provision for letting out the contract to the lowest bidder clearly negatives the idea of absolutely predetermining and publishing exactly what such price shall be. It was said, however, that an approximate price should be fixed and published. If the advertisement were required to state the price to be paid, and then the price had to be fixed by competition among bidders, evidently the published price could not be an accurate statement of the ultimate price, and at most could only be either a maximum limit, or an approximation or estimate on the part of the commissioners as to what the lowest bid would be. The word “terms” does not always have identically the same signification. The instrument in which it is used, the context, and the subject-matter may all be considered in determining the exact meaning to be given to the word in a particular instance. If it should be said that the terms of a contract for the erection of a court-house must- be in writing, most likely this would be understood as meaning that all the terms and provisions, including the price, must be stated in writing. But, as will appear from what has been said above, the word as used in the statute under consideration could not be construed to mean that the final price to 'be named in the contract must be stated in advance in the advertisement inviting bids, without imputing an absurd intention to the legislature. If the word “terms” in this statute meant an offered price, which had only to be accepted by the other contracting party, it would' destroy competitive bidding as to price. We find nothing in the law which would authorize the construction that “terms” included price, but that the requirement would be satisfied by only approximate or estimated price, or which requires the commissioner to make an estimate as to what the lowest bid and therefore the ultimate price will be; nor can we construe the word “terms” as requiring them to state in the advertisement, as a requisite of its validity, a maximum price. It might be useful to approximate the price, or to limit it; but we can not declare the advertisement invalid because it does not contain such a statement. If the lowest bid were greater than the county authorities could lawfully accept, and enter into'a contract on the basis of it, this might result in a rejection. But in the ease before us, we are asked to declare a contract which has been entered into with the lowest bidder void, because the word “terms” in the section of the code above cited required, as an essential of the advertisement, a statement of the price, and rendered the contract invalid for lack of it. See Hurd v. Whitsell, 4 Colo. 77, 84; People v. Waring, 5 App. Div. 311 (39 N. Y. Supp. 193).

Other contentions were that the publication did not sufficiently state the terms and conditions under which the contract was to be awarded, or show definitely when payments were to be made, or show whether the building was to be delivered furnished or unfurnished, or give the dimensions. The publication was not invalid because of any of these objections. It embraced in somewhat general terms such details and specifications as would enable the public to know the extent and character of the work to be done, and referred for more detailed information to the plans and specifications on file in the office of the ordinary and clerk of the board. It also stated the time when the work should begin, and the date when it should be completed. It fixed the time for the making of the bids, and contained provisions as. to furnishing surety, delivering a certified check as a forfeit, the manner in which bids should be made out, etc. It further stated that payments would be made monthly of 75 per cent, of the proportionate part of the contract price, upon the certificate of the architect. The specifications, to which reference was made, contained the statement that payments on the work amounting to 75 per cent, of the proportionate part of the contract executed should be made the first of each month, and that the remaining 25 per cent, should be due and payable at the final completion of the building. This was a substantial compliance with the requirements of the Political Code, §345, in regard to the advertisement for bids. Anderson v. Newton, 123 Ga. 513 (51 S. E. 508). In Scott v. Grow, 121 Ga. 68 (48 S. E. 691), neither the dates when payments were to be made nor when the building should be commenced or completed were stated. In this it differed from the contract considered in Butts v. Little, 68 Ga. 272. See also Manly Building Co. v. Newton, 114 Ga. 245, 252 (40 S. E. 274). There was nothing in the other grounds of attack upon the published notice, which required an injunction against the carrying out of the contract.

On June 8, preceding the making of the contract in August, the board of commissioners levied a tax of $1.35 per hundred dollars, for the purpose of building a court-house. TJpon the same day they passed two additional resolutions. One of them stated that the board reserved the right to remit the direct tax levy that day made for court-house purposes, in case they should later submit the question of issuing bonds to the voters, and in case the election should result in favor of such issue. The other declared that the board of commissioners might, in their discretion, collect the special tax for building a court-house in four equal annual instalments, but that this order should not in any way affect the direct levy of the tax and the authority to collect all or any part of.it at any time, in the discretion of the board. The first of the resolutions mentioned was a declaration of what the commissioners might do in a certain event, which did not occur. The second resolution was also not a direct suspension or revocation of the tax levy, but a declaration that the board might, in their discretion, distribute the collection over four years, but did not intend to affect the levy or the right to collect the tax. In this declaration of what they might do as to scattering the collection of the tax over four years, they were mistaken in their power. They had no such authority, and any effort of that character would have been illegal. Johnson v. Pinson, 126 Ga. 121 (54 S. E. 922); s. c. 127 Ga. 144 (56 S. E. 238). Had this resolution revoked the tax levy, the plaintiffs’ contention on this subject might have been well taken; but the mere assertion of a power to do something which they could not lawfully do, and which it does not appear they have actually attempted to do, spread on their minutes in the shape of a separate resolution, and not as a modification or revocation of the special tax levy, did not have the effect to render such levy illegal.

If the contract was in other respects legal, and provision for payment was duly made, the mere fact that the work could not 'be completed between the date of the contract in August and the end of the year, and that it was to be completed and final payment made in the early part of the succeeding year, did not render such contract unlawful. Gaines v. Dyer, 128 Ga. 585 (58 S. E. 175).

The plaintiffs in error contended that the contract was signed only by the chairman of the board, and not by all of its members, and was therefore illegal. It appeared, however, that, at a meeting of the board, the bid of the Falls City Construction Company was by resolution accepted as being the lowest and best bid, and the chairman of the board was authorized and directed to prepare and execute a contract based on such bid. The minutes also showed that the contract, having been executed and presented to the board, was ratified, approved, and confirmed and ordered to be entered on the minutes. Thus the discretionary power of acting upon the bids, accepting that of one of the contractors and closing the contract on that basis, was exercised by the commissioners as a body. The ministerial-duty of preparing a contract accordingly was entrusted to the chairman; but the contract as thus executed was presented to the board, and approved as the contract between the county and the contractor. Under the circumstances above stated, there was no error, on that ground, in refusing to enjoin the performance of the contract. Indeed in their original petition the plaintiffs alleged that the commissioners had entered into and executed the contract, and that it had been entered on the' minutes. By an amendment they attacked the sufficiency of the signature thereto on behalf of the county. ■

The notice of the holding of the bond election did not revoke the tax levy; and the effort to enjoin such election was abandoned in this court, counsel for both sides conceding that the election had already been held, and had resulted adversely to the issuing of bonds.

The presiding judge enjoined the carrying into effect of one clause in the contract in regard to paying the expenses of litigation. But this was separable, and did not destroy the entire contract. In the light of the pleadings and evidence, there was no error in the refusal of the injunction further than it was granted.

Judgment affirmed.

All the Justices concur.