Opinion
No. 33543.
January 30, 1939.
1. COUNTIES.
Where county supervisor purchased lumber from dealer without competitive bidding and bridge to which bulk of lumber was applied consumed more than $100 worth of material, items of less than $100 being arrived at by dividing the total amount of lumber into lots of less than $100, statute requiring competition bids on purchases of more than $100 except in "emergency" was not complied with and county was not liable for the lumber (Code 1930, sections 246, 6064).
An "emergency" is an event or occasional combination of circumstances calling for immediate action, pressing necessity, a sudden or unexpected happening; exigency; pressing necessity.
2. COUNTIES.
The purpose of statutes requiring competitive bids on public contracts is to secure to the public fair contracts, and the advantages of competition (Code 1930, sections 246, 6064).
APPEAL from circuit court of Lee county; HON. THOS. H. JOHNSTON, Judge.
I.L. Sheffield, of Fulton, for appellant.
As I see this question it is simply and purely a question of whether or not the terms of Section 6064 of the Code of 1930 were substantially complied with. I submit to the court that a substantial compliance with this statute is all that is required. It is not a statute providing a subterfuge or a way whereby the law may be evaded but is a remedy whereby in cases of emergency supervisors may purchase supplies without having to advertise for bids in the usual way.
American Disinfectant Co. v. Oktibbeha County, 110 So. 869.
My contention is that this statute should receive a liberal interpretation. That when a man makes an honest effort to comply with the statute and does comply substantially with it that the requirements of the law have been fulfilled. In this connection I will state that Section 6065, next following, provides a penalty for a failure to comply with the law in regard to purchases of this case.
Therefore, the usual interpretation applied to such penal statutes is a liberal and broad interpretation but I submit to this court that upon any theory of the law this man is entitled to his money. That the Legislature never intended to defeat a man of his just rights and deprive him of the benefit of his toil when every honest effort by all parties concerned had been employed to comply with the requirements of the law. Any defense to this action which may be attempted is purely and simply technical. The old member of the board of supervisors admitted and insisted that it should be paid and the present member of the board of supervisors, Mr. Knight, frankly admitted that the claim should be paid and whatever else, outside of this record, which may have caused the board of supervisors to refuse to pay this claim is aside the case and certainly should have no bearing whatever upon it, but it is plain to a wayfaring man that this man, the appellant, should not be penalized because of some technical failure on the part of some official to discharge his duty in the strict way and manner in which the law requires it, even if such should be found to be true, but again I want to say that to my way of viewing this case, a substantial compliance with the requirements of the law has been made and there is no reason for the second district of Lee County not paying W.W. Bigham for the lumber which he hauled in at the request of their representative to his home and which was used for the benefit of the people of the second supervisors district of that county.
I have never known of a decision in the legal jurisprudence of Mississippi holding that an official, or a board officials, do illegal things in preference to legal things. A presumption certainly is indulged in favor of the legality of the action of the board of supervisors, and of this member, Lee Riley, in this particular case and I submit that the certificate filed by Lee Riley, with the board of supervisors, showing that the lumber was delivered and used by the second district and that the claim had not been paid was just, due and owing, and that all other requirements of the statute had been complied with, was sufficient and the board of supervisors should have paid this claim.
Mitchell Clayton, of Tupelo, for appellee.
It is our contention that the record shows utter failure to comply with Section 6064, Code of 1930, known as the emergency statute.
We submit that this statute means just what it says. That no purchase can be made by the individual members of the board except in case of an emergency and in that instance the member must comply with this statute by making out bill of the supplies needed (which must not be more than $100) and this list must be taken to at least three dealers and bids received and lowest must be accepted; and in addition to this formal way of making the purchase, the claim must be filed with the certificate of the supervisor that he has so presented this list and naming the parties who bid on same.
The proof in this record is very meager as to any emergency. And we insist that no such emergency as is contemplated by our statute existed.
We submit that if the procedure here followed can be held to have been a compliance with the emergency statute, then the law is worthless. We are not here dealing with the wisdom of the law. That was for the Legislature. The statute was passed for emergencies and its provisions are plain and readily understood. Counsel for appellant correctly interpreted the statute, both in preparation of the certificates and in drawing the declaration. The trouble with the whole matter is that the proof did not sustain these allegations in the declaration, nor the recitals in the certificates.
The appellant, W.W. Bigham, filed a suit against Lee county for the value of bills of lumber amounting to a total of $613.62 and interest, alleging that on the 4th day of September, 1935, one, Lee Riley, was a duly qualified and acting supervisor in and for the second district of Lee county, while the plaintiff was engaged in the lumber business; and that he sold lumber to the said Lee Riley for the use of the county and district, the total number of feet sold on any order being, in each instance, less than $100 in value. That before making the sales to Lee Riley, the said supervisor, the latter had presented an itemized list of the lumber desired to Robert Riley, a man engaged in the lumber business, whose bid thereon was for $29 per thousand feet. That Lee Riley had likewise submitted a list of lumber desired for the county to another dealer in lumber, Clarence Blankenship, whose bid was for $27 per thousand feet. That the list was then presented to the appellant, W.W. Bigham, who agreed to furnish the lumber for bridges at $25 per thousand; and that he did deliver the lumber for that price, at the home of Lee Riley, in the second supervisor's district.
It appears from the exhibits to the declaration that the bills for lumber were submitted or made out in part, so that none of the several itemized accounts would exceed $100; but that the total of these bills amounted to $613.62, as above stated. The accounts, as presented to the Board of Supervisors of the second district, in each instance read substantially as follows: "Lee County Dr. to W.W. Bigham. Sept. 5, 1935. Dr. to W.W. Bigham for bridge lumber — 3007 at $25.00 per thousand — $75.17." To this account was attached a certificate reading as follows: "I, Lee Riley, member of the Board of Supervisors of Lee county, Mississippi, in and for the second district of said county hereby certify that during the year 1935 the second district of said county had a contract with Lee Easterly for the delivery of bridge lumber to my home for the second district of said county, same to be paid for at a price fixed in the contract but that during said year I called upon the said Easterly and he failed and refused to deliver the lumber; that on September 5, 1935, certain bridges in my district needed repairs and rebuilding and being unable to secure the lumber from the man who had the contract to furnish same I made out the above list of pieces of lumber needed totaling 3007 feet to be of specifications required for bridge lumber and I submitted the above list to two dealers in lumber; that one of said dealers was Will Smith and that his bid to furnish said lumber was at $30.00 per thousand, and I submitted said list to Robert Riley and his bid thereon was $29.00 per thousand, and that I also submitted said list to Clarence Blankenship and that his offer to furnish said lumber was $27.00 per thousand, and that W.W. Bigham was presented by me with said list and he agreed to furnish same at $25.00 per thousand and this being the lowest bid made I awarded said contract to him and I further certify that he complied therewith by delivering said lumber at my home in said district. I further certify that the said itemized statement above is a true and correct copy of the supplies needed at the time and is a true and correct copy of the supplies the bids on which I procured from the parties above mentioned and that same was purchased from the said W.W. Bigham and the bill for the same was and is hereby approved by me. The above order was filled on September 5, 1935, by being delivered to my residence and the amount thereof is $75.17. This the 5th day of September, 1935."
The various other accounts were accompanied by substantially the same statements, except as to number of feet, and amount, by Lee Riley.
The Board of Supervisors rejected the account at its meeting in November, 1935. It appears that a contract had been awarded to another dealer in lumber to furnish the county with the lumber desired at the figures named in the contract; and it appears from the testimony of the former supervisors, Riley, whose term expired January 1, 1936, that he applied to the said person having the contract, and that he would not furnish the lumber desired. It appears from the testimony that the bills here involved were for the repair of bridges which had become old and dangerous not for repairing bridges damaged by floods and the like. It also appears from the testimony that the bills were not itemized and presented to the respective bidders as special items needed, but that the deals were for lumber to be delivered at the home of Lee Riley, the supervisor, for use of the district, at a certain rate per thousand, orders to be filled as presented. And, also, that the statements presented to the Board of Supervisors did not specify the names of persons to whom the bids had been presented, and the prices at which they had offered to furnish the lumber.
It further appears that the bridge to which the bulk of the lumber was applied consumed more than $100 worth of the material; and that the items of less than $100 worth of lumber were arrived at by dividing the total amount of lumber into lots of less than $100; but the aggregate amounted to more than that sum. After Riley went out of office, and after the claim had been rejected while he was in office, in the latter part of 1936 he filed the certificate above mentioned with the Board of Supervisors, and again had the account presented for allowance to W.W. Bigham, with certificates prepared under the direction of an attorney. The board again disallowed the claims, and suit was brought in the county court, where it was submitted to a jury for decision. The jury found for the plaintiff in the amount sued for, from which judgment an appeal was prosecuted to the circuit court upon a bill of exceptions embracing the evidence and instructions and the rulings of the county court, which rulings included a refusal of the peremptory instructions requested by the county.
The circuit judge was of the opinion that there was error in the record, and reversed the case, and the cause was submitted to the circuit judge without a jury, to be tried de novo upon the evidence contained in the county court record, and other evidence produced before the circuit judge. The circuit judge found in favor of the county, from which finding this appeal is prosecuted. Section 6064 of the Code of 1930, under the chapter on public purchases, reads as follows: "All boards of supervisors, boards of school trustees of the common schools and all boards of mayor and aldermen of municipalities shall purchase their supplies for public works, and for public buildings, and for public constructions, upon competitive bids, letting contracts therefor for periods of not more than twelve months in advance; and no individual member of any such board shall, in any case, purchase any such supplies, nor shall any such board ratify any such purchases made by any individual member thereof or pay for the same out of public funds; provided that in case of emergency any such purchase, not exceeding one hundred dollars, may be made by an individual member without competitive bidding, after having submitted an itemized statement of the supplies needed to at least two dealers in the supplies sought, and shall purchase from the lowest bidder; and provided, further, that the individual member so purchasing shall approve the bill presented therefor, certifying in writing thereon to whom such itemized statement was so submitted and the sum bid by the dealers not bought of it."
Also, under section 246, Code of 1930, it is provided that contracts shall not be made in vacation, and that individual members shall not make contracts, except in special cases, provided for by law; "A board of supervisors shall not empower or authorize any one or more members of such board, or other person, to let or make contract for the building or erection of public works of any description, or for working public roads, in vacation or during a recess of said board; except in cases of emergency when a bridge or road has been or is about to be damaged by floods or otherwise, for which special provision is made in the chapter on roads and except in other special cases elsewhere provided; but all other contracts shall be made and approved by said board in open session, and it shall be the duty of the board of supervisors to accept the lowest responsible bid for the erection or construction of all public buildings, bridges or public works, or for the execution of any other contract; and any bidder will be deemed responsible who will enter into bond, with sufficient sureties, according to law, to be approved by said board, in double the amount of the bids made by such bidder, for the prompt, proper and efficient performance of his contract; and all contracts made in violation of any of the provisions of law shall be void."
We think that in this case the requirements of these sections of the Code were not complied with, and that the manner of making these contracts was a plain evasion of these requirements. See American Disinfecting Co. v. Oktibbeha County, Miss., 110 So. 869; Franklin County v. American Disinfectant Co., 153 Miss. 583, 121 So. 271.
The manifest purpose of the statutes is to safeguard public contracts, and to secure competitive bids from parties interested, to secure to the public fair contracts, and the advantages of competition. It was recognized that there would be emergencies, where action must be taken speedily; but it was not contemplated that purchases might be made for less than $100 when no emergency existed. In 2 Words and Phrases, Second Series, p. 255, emergency is defined as, "An event or occasional combination of circumstances calling for immediate action, pressing necessity, a sudden or unexpected happening, exigency." Citing cases. "The word `emergency' is defined in Cent. Dict. as follows: `A sudden or unexpected happening; an unforeseen occurrence or condition; specifically, a perplexing contingency or complication of circumstances. A sudden or unexpected occasion for action; exigency; pressing necessity.'" Citing cases. "The word `emergency' signifies some sudden or unexpected necessity, requiring immediate or at least quick action." Numerous other definitions of similar import are given in Words and Phrases, under the title "Emergency."
There is an insufficient showing of an emergency here, as well as failure to comply with the requirements of the statute itself, and it results that the judgment must be affirmed.
Affirmed.