- ..~,
1
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Overrded lly-~ ent
Sam F. Pat;tmev.Conch CO.
Ixstr1ctc I one 0 co.
-c-J
Honorable 3. Y. Busmere
Oount~r Attommy
Charolue Q6Untv
Rurk, Toxar
otr rtiatotl, and
ion or thlr Dqmrtment
6 been reoe~vd.
eta, upon whlah you
Lnion an hereinaitrr
rokee Gounty, upon order of
J and regularly adrer0iswl
oertain roa& raehinery for
Slur warrant6 In part pwment therefor. No
purehasea were +%I on January 28, 1941 for Oomml~~lonerti*
Pro¬e Nos. 2:anb 4, beoauso thegommierionrrr of those
preoinats etated to the coup'6 at that tlae that they di6
not dealre to make any purohwes at that letting. Xat8ediatel~
thereafter, an8 on the same bay, all unauooesrtul blddors,
lnoluding the HI-Way Wachbmry fhepany of Dollar Fe%a6,
wi.th&rew their btdr and bid bond@, and aaid~ le#& VII@OlOreb.
Hon. J. W. hmreere, page 2
“About a month after the bide and bid bonds &d been
withdrawn ae mentioned hereinabove, the oommlerloner of
Preoinot No. 4 on or about Maroh, 1, 1941, eigned a ‘pu-
ohnne order1 wlth the Iii-Way Naohlnery Qomplny of Dalaa,
Texme, for a motor grader eoetlng approximately $6~00.00
and eeoumd the slgnaturee of al.1 the other oommlaalonera
to eald purohase order; and on or about Xmroh 8, 1941,
the oommleeioner of Preolnot No. 2 elgnrd a slnllar lpur-
ohaee order’ with la ld HI-Way Naohlnery Company for a
elmllar motor grader 008tlng about $6000.00 end eeoured
the elgnaturee of all the other oommleelonere to the fame.
‘Ithen the Commleei.onere ’ oourt met on Wsroh 10, 1941,
the County Judge told the oommleelonerr that the oourt
oould not approve the two above mentioned ‘pnrohaee or&err’,
for the reaaon that raid purohasee were not made in oom-
pllanoe with the etatutes of thle State requlrlng that
eald purchase8 be made upon oompetltlte bldr after proper
ldyertleeaent therefor.
*The Qo~leelonere’ Court thrn on Narah 10, lQU,
author~eed the adrertleement for bide for the purohaee of
oertaln roab maohlnery, totit: two motor grader8 whloh
8dvertleement stated that warrant8 not to lxoeed ~4000.00,
to beoome due and payable on April lb, 1949, and bearing
not to exoeod three per oent interest fro8 date, would. be
lesued in part payment ?or raid maohlnery, and that the
Qommlselonere’ Court would meet on Maroh 29, 194l, at ten
o’olook A. 1. for the opening of bide and the httlng of
oontraotr for the purohase of eald maohlnerr.
“On Maroh 24, 1941, whloh wae prior to the date set for
the opening of aald bida anb the lrttlng of oontraote thereon,
the HI-Way Maofinery Company of pallao, Texar delivered a
motor grader to the Commleeloner of Preolnot No. 4 wlth the
lneorlptlon ‘llherokIe Oounty, Preolnat No. 4’ on ltr side,
and alao dellvered a motor grader to the Gommlerioner of
Prealnot No. 2 with the lnsorlptlon ‘Cherokee Oounty, Pre-
oinot No. 2’ on Its side, both of whloh motor grader8 were
ldentioal In speolfioatlon to the motor graders deeorlbed
In the tpurobaae orders’ elgned with eala AI-Way Maohlnery
Oompany on or about Waroh I, 194l, and on or about Waroh 8,
194l, a0 aforesaid, and also ldentlaal in epeolfloatlon to
the two motor grader6 desorlbed in the advertieement for
bide which set Neroh 29, 1941, a0 the date for the opening
of bids and the letting of eontraaate thereon.*
I.
Hoa. 3. w. fhuem*re, pair* 0
*When the Commleelonere Court met on Maroh 99, 1941,
for the opening of said bids oorerlng the tw motor
graders and the letting of oontraotr thereon, It was found
that the HI-Way Neohlnery Coapany of Dallas, Texae, had
eubmltted a bid for two motor grader0 at tha same prloee
oalled for in the npurohaee orders* it had prerlotaely
eeoured. The Oounty Judge again stated to the Oommle-
eIonere that said puroheee wre not made In oompl&anoe
with the statutes of thir State requiring that euoh
purohaeoe be made upon oompetitlte bide after proper
adrertleement tharofor, aad that the OommleeIonere’
Oourt had no authority to ratify a purohaee made oon-
trary to said statutes. Xn rdditlon to the above facts
lt night be noted that the aeeeeeed valuation OS taxable
property In Cherokee County aooording to the last approved
tax roll was $13,0SI!,000.00.
‘Blnoe the above faote show that apurohaee orderer
were signed by the OomaIeelonere for raid two 8otor
graders, eaoh ooetlng about $6000.00, prior to advertleo-
ment for bide thereon, and that said two motor grader6
WN dellrored by eald HI-Way Maohinery Oomprn to the
ComaIeelonere of Preolnots 19uabered !2 and 4 pr I or to khe
date ret In the natloe to bidders for the openlq of raid
bide and the letting of eontraote thorson, It 18 the opinion
of the writor that said purohaeee or attempted purohaeor
of the two motor grader6 were not made In oo8pllanoe ulth
the ltatutoe of thIe 8tate requiring luoh purohaeee by
the Oounty to be made upon oompetltlre bide after proper
ldrertIe*rint therefor. Art1010 1689 ana Art1010 2S68a,
Revised Olrtl Statutes of Texas.
‘And tt Is also the opinion o? the writer that if these
purohaeee OS the two motor grader6 were made In rlolatlon
of the etatutoe of thte State requlrlng euoh purohaeee by
the County to be mnde upon oompetltlte bide after proper
adrertleemeat therefor, the Dommleelonerr’ Court was
without authority to ratify said purrohaeee. Wyatt Netal
& Bollor Norke v. Pannln (lounty (Tex, 01~. App.) 111 8. U.
(26) -7; Llaeetone County v. Knox (Tex. OIv. App.) 254
8. w. 151.
4
Hon. J. W. Bummers, page 4
‘Upon the baeie o? the faobe harelnobove detailed,
plecce zdriee me your oplnlon upon the following queetionb;
*1. Were said two motor graders purchased In oom-
pllanoe with the laws of the State of Texas?
‘2. If not, tirP the ~~n?mleeioners’ Court the authorIt
to ratliy eald purohasee and ineue warrants in payment
therefor?
“3. Has the Comeilrsloners’ Court, u&or any future
advertleement, legal authority to purohaee eald two motor
graders a6 long a9 eame are in the poe~eeeion of said tw
Commleslonere and In Cherokee CountyOU
Article 1669, Vernon’s Annotated Clvll Statutee, reads
a6 follow8:
lSupplles of every kind, road and brldga materlal, or
any other material, for tne use of said county, or any of
Its o??Ioers, departments, or Inrtitutlone must be purohaerd
on oompetltlve bids, the oontraot to be awarded to the party
who, in the Judgment of the oommiesionere oourt, has mb-
mitted ~tha lowset ar.d host bid. The county auditor shall
adve~tIee ?or a period of two woke In at least one dally
newspaper, publleheQ and olroulated In the county, for luoh
ruppllre and material aooording to apeoifloatlone, @ring
In &eta11 *&at Is needed. &oh adrertieemente ohall state
where the apeol?loatlone dare to be found, and ehall give
the time and place for reoelvlng suoh bldg. All enoh
oompetitlre blda oh&l1 be kept on flle by the oounty auditor
ee a part of the rocorda of his offloe, and &all k
to inepeotion by any one deelring to ee@ them.
all bIde reoeived eP&ll be furnished by the oounty auditor
to the ooudty Judge and to the oommleelonere oourt; and
when the bids rsoslved arc not satiefn~atory to the raid
Judge or oounty oommlcslor?ers, the auditor ehall reJeot
aaid bid6 md rcadvewtlee for new bids. In oases of
emergenoy, purohases not in exce6e 0r one hundred and ?l?tY
dollars may be made upon rsquIuieitll~n to be approved by the
OommIreIonerg oourt, without sdrertlalng for oompetltive
bids.”
Hon. J. W. Summery, page 6
Bectlon 2 or Artiolr 236Sa, Vernon’s Ann0tatet.l Ciri.1
Statutes, reads in part ae followr:
“No county acting through Its Commiselonere~ Court,
and no oity in thle State, ehall hereartar make or enter
Into any oontraot or agreement for the oonatructlon of any
pub110 building, or the proseoution and oompletion of any
pub110 work requiring or authorlslng any expenditure in
exodse of Two Thousand Dollars ($2000.00), oreatlng or
lmpoelng an obllgatlon or liability of any nature or oharaoter
upon auoh oounty, or any aubdlvleion of such oounty, or upon
such olty, without fir& eubmlttlng euoh propoeed oontraot
or agreement to competitive bid?. . . .
‘Any and all such oontrrots or agreement8 hereafter
made by any oounty or oity in thle State, without oomplylng
with the terms of thle Seotion, lhall be void, and rhall
not be enforceable ln any Court of thle State, and the
performanoe of came and the payment of any aoney thereunder .
may be enjoined by any property taxpayMg oitlzen of woh
oounty or oltr.”
It is clear that from the faots etated ln your letter
the commle6lonarr~ oourt did not oomply with the above mentloned
rtatute8, Therefore, in view of ‘uhe above mentioned statutea,
your first questlon Is reepeotfully answered in the negatlre.
With ceferenoe to your reoontl question, ]rour attention
ia direoted ta the oaee of Wyatt Metal and Boiler Worka Y. Pannln
County, 111 S. W. (28) 757, and authorities cited therein. Thie
oaee among other things holds in effeot that a oounty oommlselonere*
oourt haa no authorltg to ratify a purchase of goods made In rlola-
tlon of statutes requlrlng oompctitlve bids. This oaee further
holds In effect that where the oounty comaleslonerr bought oul-
rerta from a msnufaoturer without advertising for bide and the
oounty audltor refused to approve th6 manufaotursr’e olaim, and
in order to validate such olalm the oounty advertised for bide
on *Cooper Mo-Lyb-Denum Iron Culverts’ tnd where the came manu-
faoturer’s bid was aaoepted an ldenttoal number of oulverte of
the same kind were ordered by the ooemlsslonere’ oourt end
delivered pursuant thereto, it was found that the traneaotlon
was a fraudulent attempt to ratify the original aontraot of
purohaee. We quote from the aoove mentioned oa8e as follows:
P
Hon. J. W. Summers, page 6
*It Is clear that fram the passage of theme sots it
was the intent of the Leglelatura to declare a public
polloy. That such a policy 1s wlee 1s evldenoed by the
unlverrallty of auoh mtatutee found in the laws of Con-
gress and of all the state Legislatures. Theee purqhasee
hatln been made In violation of the prorlslonr of the
artlo f 08 requiring oompetltlve bids, the oourt was wlth-
out authority to rat10 same, for thle would grant them
a power to do aomethlng lndlreotly they oould not do
dlnetly. Stephens County v. H. C. Burt & Co. Tex.
ClVtl App. ( 19 8. W. 28. 961; Wyatt Metal 6: 8olier Workr
Y. Lipsoomb, eupra; Limestone County v. Knox, Tex. Clv.
APP.. 234 8. W. 131: Rue v. Wlssourl Pac. Ry. Co., 74
Tex. 474 8 S. W. 033, 15 Am. St. Rep. 862; State Nat.
Bank of $ Paeo v. Flnk, Tex. Clv. App., 24 8. W. 937;
11 Tsr. Jur. p. 643, 4102; Layne-Western Co. v. Buohanan
County, 0 air., 83 F. 26 343, 346). Layne-Wertern Co. Y.
Buohanan County, eupra, dlsou~cwe~ the power of a gavern-
mental division to ratliT a oontraot. That oplnlon quote8
from Mulllna v. Kansas City, 268 Xo. 444, 188 S. W. 193,
a8 follows : ‘It la plain that to allow such a dootrlne
upon a contemporaneous matter to be ruooerefully areerted
in the teeth of a etatute whloh forbids, and of whloh
statute plaintiff muet be held to know, would be agdnst
pub110 polloy. * * * Offloera Or munlolpalltles are not
general agents; they are apeolal agents, whore dutler
are net forth in the statutes whloh oreate them and whloh
define their powere, and of theee tatatutecr, and therefore
of these offloors’ powera, the pub110 whloh dealr with
them must take notloe end govern theme.elrou~aooordlngly.
l * l Vain an& rutlle would Conatltutlon and rtatutee
and ohar>ter be, If any offlaer of the etate, or of a oounty,
or of a elty or other munlolpallty, oould follow them only
when ha eaw fit. If by eetoppel suoh mlutary provlslonr,
enaoted with wlss roreslght as ohecke. upon extravaganoe
and diehonesty, oan be utterly abrogated at will by any
officer, ruch prorlslone then eubserve no purpose, and
the pub110 oorporatlon has no earthly proteatlon agalnet
either greed or graft.*
In view of the above mentioned authorltlee, your
seoond question 1s answered in the negative.
Non. J. W. hamere, page ‘7
In reply to your third question you are advised that
it 1s the opinion of this Department that the oommlrsloners’
oourt haa the legal authority to advertlee and purohaae the
two mentioned motor graders, provided, that said oourt rtrlotly
oompllea with the above mentioned etatutee. The faot that the
gradors are in the poseesrlon of the oommlrsloners in said
oounty 3.8 Immaterial. We think that the above mentioned
proo~edlngr of the oounty 1s wholly void and the statue of
the oounty relative to the motor graderr ln question Is the
#ame aa lf no aotlon whatrroerer had been taken by the oounty,
and ar above *tated, ln order to purchase maid motor graderr
the oommlasloners oourt must atrlctly oomply with the above
mentioned rtatutes.
., Trurtlng that the foregoing fully answer6 your
lnqulry; we are
Yours very truly
ATTORNEYOEMERALOF TEXAS
Ji?ddev&
BY
Ardell Wllllamr
Arsiatant
AW:AXX