Case Information
*1 RoiMrable Julian Montgomery
St&it6 Hlghwis;y Eng'lneer
St&e Rlghnlls Department
Austin, Texas . Dear Sir: Opinion No. O-1351
Re: Legality of certain prijvlsldns of'the speclflcatlons and con- tract of the Neches River Bridge.
We acknowledge receipt of your letter of August 17, 1939, 1i1 which you request the opinion of this departmerit ofi-‘ thelegality oi~the foll.owlng two provisions of the speclflca- Mona and contract of the Neches River Bridge:
(1) ~~f;gP~o~Jr;;;lcle 5, on page 30, :
"Rejected materials shall be'removed frtim the vlclnitg of the'work, and the con- tractor shall promptly r&mov*, reconstruct, replace; and make good, as may be directed, without oharge, any defective work. Over- sight or errbr (In) judgment of Inspectors or prevloUs acceutance shall not relieve' the contractor from the obligations to make good defects whenever dlscovered." (2) ;;ragraph 2, Article 111, on page , of said contract: "Any failure of completed paint work shall be deemed to be a fault of the~clean- ing a~nd painting, and any finished painting that proves.to b‘e defective shall have the metal recleaned and the entire palntlng.here- In speblfled applied. All costs thereof . .,, . . shall be charged to the contractor . e .
A contract Is~ilUgal If it violates~'any provision of the CorGtltutIon, or of a statute or city ordlnahce, or If the performance called for by the"~terms of the contract will result in such a"'vFolatlofib A contract Is Illegal If the"~terms of the contract are contrary to public policy, or If the agreement in *2 Honorable Jullar, Montgomery, page 2 o-1351 whole br in part is to use the subject matter of the contract, oti is: p%irt thereof for an unlawful purpose. See 10 Tex. Jur';, Paragraph 1.06, at page 183, and iiiithorltles therein cited; also 10 Tex. Jur., Paragraph 107, at page 185, and authorities therein cited.
The following quotation Is from I.0 Tex. Jur., Para- graph 103, on page 190:
"Generally speaking, a contract which Is nbt In Itself lminoral or in contravention of any law Is-not contrary to public policy. But there Is iio absolute rule by which tb determine whether a."particular contract Is contrary to public policy; each case must be judged by Itself.
"Public policy permits the utmbst.ffeedom of contracts bbtween piirti~es of full tige, and com- petent~underatandlng; and requ‘ires that their con- tr&ts, when fri+ely ahd voluntarily entered into, Wall be held sacrea and enforced by the courts, and this freedom shculd not lightly be Ffiterfered with by holding that a contraat is contrary to plbllc policy. In dtiubtful cases, thii pi+esumptlon Xs in favor of the validity of the transactlon; and where public pbllcy IS not settled by-'recog- nlzed principles, a contract‘wlll W6 declared to b& in contpaventlon of It only ln.cases in which the Injury to the public is clear:"
We know of n0 constitutional provIslon, statute, or ordinance which Is violated by the contractual provisions above set out ivld referred to; nor do we find involved in these pro- any question of public policy. visions
It Is therefore, the opinion of thls.department that the provislors of the specifications and contract.of the Neches RlverP Bridge hereinabove set out are legal and may properly be made a portioti of said conti?act.
Yours very truly ATTORNEYGENmL OF,TEXAS RC:FG:wc By s/Ross Carlton Ross Carlton APPROVBD SEP 7, 1939 Assistant s/Gerald C. Mann ATTORNEYGENERAL OF TEUS
Approved Opinion Committee By s/&B Chairman