State ex rel. Collins v. Standard Construction Co.

78 So. 625 | Miss. | 1918

Dissenting Opinion

Ethridge, J.

(dissenting).

I do not believe the motion, to dismiss should be sustained. I do not think that the Capitol Commission, by any act it may have done after the institution of the litigation by the attorney-general, could preclude, by such act, the state from maintaining its bill. The bill alleges that the architect and the Capitol Commission had approved a certain plan and specification for the restoration of the old capitol, approved August 21, 1916, under which plan the Department of Archives and' History was to have been located upon the second floor of the old capitol, and that this was done by the commission in recognition of the intention of the legislature to have the Department of Archives and History located in the old capitol which was being preserved, partially for historical purposes, and that the contract for the work involved in this suit was let upon the plans and specifications made exhibit to the attorney-general’s bill. It is also alleged that the contractor and two of the commissioners were proceeding not in accordance with the plans and specifications adopted, but according to a different set of plans and specifications and were doing the work in an entirely different manner in the way of arrangement of space, partitions, windows, wiring, etc., and in utter disregard of the plans adopted by the commission and in violation of the contract, and also in violation of the letter and spirit of chapter 112, Laws of .1916, and that the plans of the legislature cannot be carried out under the plans under which the work was being done. He alleged that the suit was brought on the relation of two of the f our menbers of the Capitol Commission, and alleged that the other two members and the architect were directing the said contractor to do the restoration work of the second floor not according to plans adopted by the commission, and upon which the contract was let, hut in utter disregard of an order of the Capitol Commission passed on the 20th day of April, 1917, in which the said contractor was notified to do no further work in partitions on the second floor of the building until further notice, and alleged that the contractor and the architect were notified of the action of the commission, and that they were notified that, if they persisted in the work in violation of the plans and specifications referred to, they would not allow the pay for the work. It further alleged that the method in which the work was being done increased the cost to the state, and was doing an irreparable damage and so creating' a situation for which there was no adequate legal remedy. The bill then prays for an induction from taking any further steps or doing any further work on the second floor not in accord with the plans and drawings shown by exhibit A to the bill, and prayed for a temporary and perpetual injunction. The answer denied that the commission adopted the plans and specifications set forth in the attorney-general’s hill, hut contended that they adopted another set of p a ns and specifications made exhibit to the answer under which they claim the contract was let, and by which the second floor of the old capitol was cut into offices other than for the Department of Archives and History. It appears from the record as a whole that no plans and no specifications were ever adopted by any formal order entered upon the minutes of the board. It appears from the testimony of the architect that he had drawn quite a number of different plans and specifications for the work, and sent them to the Capitol Commission, but it seems that none of them were ever formally adopted, and no order was entered upon the minutes. The notice to bidders, made exhibit B to the Attorney General’s bill reads as follows.-.

“Notice to Bidders on Old Capitol Work. Bids on the restoration of the old state capitol will be opened by the commission February 23, .1917. Bids must be in the hands of the undersigned before that date.

“[Signed] A.. S. Goody, Secretary.”

This notice to bidders does not refer to any plans and specifications at all, and does not refer the bidder to any source from which any plans and specifications may be obtained by which the work was to be done. As there were no plans and specifications adopted by the Commission and none entered upon the minutes of the Commission, the bidders were left without a guide upon which to do the work, except such as he might obtain from the members of the Capitol Commission or the secretary. Inasmuch as several different plans and specifications had been filed with the secretary of the commission by the architect and none of them had been formally adopted, it is apparent that under the facts of this record the bidders may have been. referred to different plans and specifications by different- members. It appears from tbe testimony that the plans and specifications referred to and made an exhibit in the attorney-general’s bill were tentatively indorsed and accepted by the Capitol Commission, though not finally and completely adopted and not entered upon the minutes, on or about the 21st day of August, 1916. On the 10th day of November, 1916, the following motion was made and carried at a meeting of the Capitol Commission:

“Motion by Governor T. G. Bilbo, seconded 'by Mr. B-o.bertson, that the architect, Theo. C. Link, be requested to furnish this commission for its approval complete plans and specifications for each particular contract in connection with the restoration of the old state capitol. The same to be agreed to and signed by the commission, and the architect and the contractor, and a copy of same so signed to be placed in the hands of the commission for its records and that ’ hereafter such plans and specifications for each contract shall be approved by the commission and the architect as above stated before bids are invited.”

It is manifest from this motion which was made and entered upon the minutes, and of which each bidder was charged with notice, that no contract could be validly made unless and until it had been approved and signed by a majority of the commission. When the contract was let a motion was made by T. M. Henry, one of the commissioners, and seconded by Mr. Power, another, that the bid of the' Standard Construction 'Company be accepted according to the plans and specifications, which each of them understood to be the plans and specifications made exhibit to the bill of the attorney-general. Each of them testified that it was his desire and intention to have the Department of Archives and History located upon the second floor of the old capitol, and each understood that the bid was made with reference to the plans drawn on August 21st, Exhibit A to bill, and on the application of these two members, who so understood the matter, this suit was filed, and the temporary injunction prayed for and obtained was to stop the work from being done upon any other plan from that contemplated in the exhibit to the attorney-general’s bill. "While it is true that the attorney-general alleged that the contract was let upon the exhibit to his bill, and while it is true that Mr. Henry and Mr. Power so understood at the time the contract was let, in fact, such plan had not been adopted, and there were in fact no legal plans and specifications adopted -at all. This does not, however, prevent the attorney-general, who is the legal representative for the state, from suspending the work by a process of law until the requirements of the law are complied with; and, while under the temporary, injunction the work could have proceeded, according to the plans made exhibit to the attorney-general’s bill, it could not proceed on any other plan until the injunction, was dissolved. The act (chapter 112, Laws of 1916’) required the Capitol Commission to employ an architect to draw plans for the repair and preservation of the old capitol, and it is clear from a study of the provisions of the act set out in the statement of facts in the majority opinion that the commission had no right to proceed until it had adopted some plan and specification.

It is borne out in the testimony that the work being done under the plan made exhibit to the answer was costing the state more money than it would to carry out the plan made exhibit to the attorney-general’s bill. This fact itself was sufficient consideration and' sufficient interest on the part of the state to maintain the bill until the act had been complied with. At the time the decree was entered by the chancellor the Capitol Commission had voted to suspend the work until the Capitol Commission could agree upon some plan. The state had a right to protect the public interest by stopping the work until the commission had proceeded according to the act, which it had not been doing ,at the time of the suing out of the injunction, and has not done even until this time. The Capitol Commission had no power and no right to make an unlawful contract; and’ when the attorney-general brought suit to test the legality of that contract, no change in the minutes after the work was done could be made so as to approve what the contractor had done. It may be that if the minutes had shown proper specifications, and if notice to bidders had referred to such specifications, and had given notice where they could be found and inspected, the state may have gotten a better bid than it did get. Certain it is that no bidder could tell from the minutes kept' by the commission what particular plan or specification he would be called on. to comply with, and said commission was equally divided as to which plan he must comply with in order to be paid; and this manifestly presented a situation that was not attractive to bidders, as no bidder would want to dq the work and take chances on getting his pay without a lawsuit or of losing his pay altogether. This matter, again, is a matter of public importance and of the greatest interest to the state. Several departments of the government are vitally interested in the question, and the rule is that, notwithstanding the controversy may have been settled after litigation was entered, the court may proceed to determine it, where it is a matter of great public interest.

When we look to all of the law relating to public contracts by all bodies, we find from our statutes that it is contemplated that all such work be done on bids according to. the plans and specifications, so that the public may have the benefit of the best bid that may be obtained. Under section 3930' of Hemingway’s Code, section 4657, Code of 1906, the Capitol Commission has general jurisdiction and control of state property in Jackson, not under the control of a hoard of trustees, which gives the Capitol Commission charge of the old capitol property. It is provided in this section that “work shall not be ordered done except by a majority vote of the said commission;” and, while this is somewhat confused under the act of 1916' (sections 3932 and 39331 of Hemingway’s Code), it is apparent that both acts contemplate that, where a contract was let, it would be let according to the general law of the land. The board of public contracts of the state, by chapter 84 of Hemingway’s Code, chapter 16 of the Code of 1906, Laws of 1912, chapter 205, is expressly required to see that contracts for supplying the state and furnishing the capitol are made to the best bidder, on notice. The same is true of the board of supervisors, all school trustees, and similar boards. The same is also contemplated and required by section 107 of the Constitution of the state. So that, construing Act of 1916, chapter 112, with ■ the other statutes upon similar subjects as indicating a public policy, it is manifest that the contract with the Standard Construction Company was not properly made; and, inasmuch as the attorney-general prayed that he be enjoined from doing the work in any other way than according to plan made exhibit to his bill, ,and inasmuch as the proof clearly shows a. state of things that entitle him to maintain this remedy, the question should be decided now; otherwise it becomes a precedent that may be followed by the greatest public mischief. Without imputing any improper motives to anybody, and assuming that all members of the Capitol Commission, as well as the contractors, were acting in the utmost good faith, this practice, if permitted, would result in the greatest injury and harm to the state. If the board can let a contract without identifying any specifications, and having several different sets on hand, it can always award a contract to a favorite; and if it were possible to believe that high public officers would ever engage in any graft scheme, it might be made a means of defrauding the state out of large sums of money by the simple expedient of exhibiting one set of plans to one bidder and another set to another bidder and awarding «the contract according to plans and specifications not marked and identified, and not of record, so that they could be changed or altered after the contract was let.

It appears from the testimony of M|r. Power that after the suit originated he sought to withdraw the suit because, in his opinion, 'a certain statute gave the Governor power to locate the Department of Archives and History, and that the Capitol Commission did not possess this power. The attorney-general, the Department of Archives and History, and the Insurance Commissioner entertained a different view-of the law, and it • appears that the secretary of state’s action, in making the motion or acquiescing in the motion upon which' the case is now dismissed out of court, did so upon the apprehension that in no event could the Department of Archives and History be placed in the old capitol without legislative enactment. . It is manifest from his testimony that he would have acted differently but for the belief that the Governor had this power. This question should be passed upon by the court and the matter settled. The court should also construe the act of 1916, and other laws, and determine the question as to whether or not it was the legislative intention to place the Department of Archives and History in the old capitol. It appears that the legislature passed a bill at the recent session, directing the Department of Archives and History to be placed in the old capitol, but such bill did not become a law because passed within the five days preceding adjournment, and was not signed by the Governor. This being true, it is not a law now, and the court should proceed and construe the present statutes so that this question may he settled now.

It would be useless for me to express an opinion upon what the decision upon the merits should b.e, as to which view of the law is correct on the power of the G-ovemor under the statute, and the power of the Capitol Commission to locate the Department of Archives: and History, or on the question whether the law itself, recreating the old capitol, authorizes and requires the Department of Archives and History to be there placed. But I think the court should consider this case on the merits and not dismiss the case.

---

Concurrence Opinion

Stevens, J.

(specially concurring).

The sole purpose of this injunction suit was to restrain the contractor and the members of the Capitol Commission from restoring the old capitol building according to any plans or drawings except those shown by Exhibit A to the bill, the prayer of the bill being that the defendants be enjoined “from taking any further steps or doing any further work on said second floor not in accordance with the plans and drawings shown by Exhibit A to this bill, and that on final'hearing of said cause that (said temporary injunction • may be made perpetual.” The chancellor upon final hearing dissolved this injunction, and it 'now appears that the work originally interrupted by this injunction has' been fully done. The'old capitol has been restored the building as reconstructed has been accepted by the Capitol Commission, the contractor paid 'and discharged, the various offices in the building have been assigned to state officials, and 'the building is now being used as a state house. The court will take judicial notice of the fact that 'the old capitol is now occupied by the various departments of our state government, and that the legislature has made 'appropriations for the operating expenses of the building. There is therefore nothing which, the court can now decide. How could this court now enjoin the prosecution of work which has been fully accomplished? How can this court now enjoin the contractor from rebuilding a structure which' he has finally and completely rebuilt? As stated, there ¡is nothing for the court to decide; this is a moot case, fpure and simple. This court is too busy with 'live issues to waste time upon an unfortunate controversy that has already been ended. The ¡case has been submitted both upon the motion to dismiss and upon the merits. It makes no difference whether we decide ¡the case on the motion to dismiss or decide it upon the merits. There is no longer a'live issue which the court can deal with and adjudicate. If we sustain the contentions of the attorney-general it is apparent that no relief could 'now be given under the prayer of his bill. It would be a foolish ¡thing for the court to reverse this case with direction to enjoin the Standard Construction Company from proceeding with a contract which it 'has fully performed, or from restoring a building which it has completely restored. The contractor is'no longer on the'job and no longer interested in the present row. The bill, as originally conceived and framed, stated'a case. In the filing and prosecution of this suit the attorney-general was. originally supported by two of 'the four members of the Capitol Commission. It affirmatively appears, however, that after the filing of this 'suit one of the two members who-, in the language of the bill, “requested the attorney-general, as the chief law officer of'the state, to take the necessary legal steps to prevent the unlawful modification of the plans 'of the commission,” withdrew his request that this suit be prosecuted, and on the contrary asked that the suit be dismissed, and 'thereafter joined with the other two commissioners in ratifying- and confirming all work done by 'the contractor.

I cannot at all concur with the view entertained by my Brother Ethridge in his dissenting opinion that the Capitol Commission adopted no legal plans and specifieations whatever. The proof shows that there was a set of plans for 'the second floor of the building-, differing from the plans shown by Exhibit A to the bill, and that the work 'which has been done by the contractor was done and performed in accordance with written plans and specifications. The plans are referred to 'in the pleadings as Exhibit D. By these plans the'second floor is cut up into suitable and appropriate 'offices for the different departments of government. . Not only were these plans, 'Exhibit D, in existence, but by resolution spread upon the minutes of the commission all work done in accordance with these 'plans has been fully ratified by a majority of the commission. It is perfectly manifest 'that plans of some kind were agreed upon. The fact that the building has been restored is sufficient evidence of this. The contractor 'could not have proceeded without some kind of plan. That he did proceed is sufficiently evidenced by the fact that the building is completed. What the contractor did has now been fully ratified by the Capitol Commission. This, in my judgment, legalizes all work that has been done. The original contract was let upon competitive bids and under the supervision of a competent architect. To my mind it is unthinkable that an architect of the highest integrity and unquestioned reputation would permit a state house to be rebuilt without any legal plans and specifications. But even if the facts were that no plans were formally adopted, the Capitol Commission could ratify the work done, and this ratification appears of record.

In dismissing the appeal I think the case should be dismissed without- prejudice to any claim or right of the Department of Archives and History to be quartered in the old capitol. It is a matter of common knowledge of which the court will take 'notice that the movement for the restoration of the old capitol was 'largely initiated and fostered by the State Historical 'Department and the patriotic and cultured women of our'state. The good women of the state appealed‘to our lawmakers to preserve the old capítol as one of the'oldest historical buildings of the state and to provide 'that it should be used for historical purposes. The public policy of the state 'was reflected by the state Senate in 1912 when it went upon record as favoring the preservation of the old state house ‘ ‘ as. an historical 'building for the state of Mississippi” and “for historical and other purposes.” I 'could not say that sentiment alone inspired the legislature in providing the necessary funds, but this, it 'must be conceded, was one of the controlling purposes. This is further evidenced by the statute which was passed by both houses of the. legislature at its recent session, directing that offices in the old 'state house be assigned to the Department 'of Archives and History. This expression is not prompted by a desire or purpose to volunteer my personal views on a controversy between different departments of our government. What I have to say is pertinent 'to the sole issue that was made by the pleadings in this 'case. The bill charges that Mr. Link, the architect, devised a 'set of plans and drawings for the second floor of'the building suitable for the State Historical Department that these plans 'were adopted by the commission, but that the contractor was doing the work according to different and illegal plans. It does appear that Mr.TLink drew tentatively a set of plans for the second floor 'designed to accommodate the Historical Department, and to be'suited to its needs,'"but the chancellor held 'that these plans were never legally adopted, and a majority1 of the Capitol Commission declined to order the work done according'to these plans. I think the legislature has'the supreme power to direct how the building should be'used, and that nothing in this litigation should be held 'to impair the right of the legislature to place the Department 'of Archives and History in the old'capitol. The building is state property, all state officials are servants'of the state, and the legislative department is supreme in its power to provide a state house and direct !how and by whom it is to be used.

---

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

(After stating the facts as above). By chapter 112, Laws of 1916, the approval of the plans and specifications, by which the interior of the old capitol was to be overhauled, changed, and constructed, rested solely with the Capitol Commission, so that its approval of the plans and specifications by which the contractor was working when this suit was begun removes all controversy relative thereto, and neither an affirmance nor a reversal of the decree of the court below will now serve any good purpose, from which it follows that appellees’ motion to dismiss the appeal must be and is sustained. McDaniel v. Hurt, 92 Miss. 197, 41 So. 381; Pafhausen v. State, 94 Miss. 103, 47 So. 897; State v. Jones, 107 Miss. 462, 65 So. 511; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Lockard v. Hoy, 113 Miss. 238, 74 So. 137.

The dismissal of this appeal is, of course, without prejudice to any right which the Department of Archives and History may have to quarters in the old capitol; that question not being here involved.

Sustained.

Case Details

Case Name: State ex rel. Collins v. Standard Construction Co.

Court Name: Mississippi Supreme Court

Date Published: Mar 15, 1918

Citation: 78 So. 625

Court Abbreviation: Miss.