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       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&note    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     withdrawn ae mentioned hereinabove,       the oommlerloner   of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

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