RoiMrable Julian Montgomery
St&it6Hlghwis;y
              Eng'lneer
St&e RlghnllsDepartment
Austin,
  .     Texas
Dear Sir:                Opinion No. O-1351
                         Re: Legality of certain prijvlsldns
                              of'the speclflcatlonsand con-
                              tract of the Neches River Bridge.
           We acknowledgereceipt of your letter of August 17,
1939, 1i1which 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,
                              :
          "Rejectedmaterials shall be'removed
       frtimthe vlclnitg of the'work, and the con-
       tractor shall promptly r&mov*, reconstruct,
       replace; and make good, as may be directed,
       without oharge, any defectivework. Over-
       sight or errbr (In) judgment of Inspectors
       or prevloUs acceutance shall not relieve'
       the contractorfrom the obligationsto 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~ndpainting, and any finished painting
       that proves.tob‘edefective shall have the
       metal recleaned and the entire palntlng.here-
       In speblfledapplied. 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"~termsof the contract will result
in such a"'vFolatlofibA contract Is Illegal If the"~termsof the
contract are contrary to public policy, or If the agreement in
Honorable Jullar,Montgomery,page 2         o-1351


whole br in part is to use the subject matter of the contract,
otiis:
     p%irtthereof for an unlawful purpose. See 10 Tex. Jur';,
Paragraph 1.06,at page 183, and iiiithorltles
                                            therein cited; also
10 Tex. Jur., Paragraph107, at page 185, and authorities
therein cited.
           The followingquotation Is from I.0Tex. Jur., Para-
graph 103, on page 190:
           "Generallyspeaking,a contract which Is
    nbt In Itself lminoralor in contraventionof any
    law Is-not contrary to public policy. But there
    Is iioabsolute rule by which tb determine whether
    a."particularcontract Is contrary to public policy;
    each case must be judged by Itself.
          "Public policy permits the utmbst.ffeedom
   of contractsbbtween piirti~esof full tige,and com-
   petent~underatandlng; and requ‘iresthat their con-
   tr&ts, when fri+elyahd voluntarilyentered 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 dtiubtfulcases, thiipi+esumptlon
   Xs in favor of the validity of the transactlon;
   and where public pbllcy IS not settled by-'recog-
   nlzed principles,a contract‘wlllW6 declared to
   b& in contpaventlonof It only ln.cases in which
   the Injury to the public is clear:"
           We know of n0 constitutionalprovIslon, statute, or
ordinancewhich Is violated by the contractualprovisions above
set out ivldreferred to; nor do we find involved in these pro-
visions any question of public policy.
           It Is therefore,the opinion of thls.departmentthat
the provislors of the specificationsand contract.ofthe Neches
RlverPBridge hereinaboveset out are legal and may properly be
made a portiotiof 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 CommitteeBy s/&B Chairman
