Donaldson v. Police Jury of Tangipahoa Parish , 161 La. 471 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a suit brought by five citizens and resident taxpayers of consolidated road district A of Tangipahoa parish. The plaintiffs seek to annul a contract which the police jury of the parish entered into with the Standard Highway Company, Inc., for the construction of roads in said district, to perpetually enjoin the execution of the contract, and to restrain two members of the board of supervisors of the district from approving or joining in the execution of the contract. From a judgment annulling the contract, enjoining the police jury and Standard Highway Company, Inc., from executing it, and enjoining the police jury from entering into any contract for the construction of roads in consolidated road district A, to be paid for out of the special taxes voted for roads in said district, both defendants, the police jury and the Standard Highway Company, Inc., appealed.

There is no attack upon the proceedings creating consolidated road district A of Tangipahoa parish, or upon the election to incur debt for road construction therein, or upon the issuance and sale of bonds to obtain funds for that purpose. Plaintiffs attack the authority of the police jury of the parish to contract with the Standard Highway Company, Inc., for the construction of 33 roads, or sections of roads, in the district, and to appropriate $264,121.22 of the fund realized from the sale of bonds to pay for said road construction.

The petition, stripped of gratuitous and unimportant allegations, alleges that the police jury exceeded its authority in letting the contract to the Standard Highway Company, Inc.; that the letting of contracts for road construction is the function of the board of supervisors of the road district; that the contract was entered into by the police jury without the recommendation or approval, and against the will, of the board of supervisors of the district; and that the contract, if it was let upon the bid submitted by the Standard Highway Company, Inc., to the board of supervisors of the district upon specifications prepared by the board of engineers, omits a vital provision of the specifications, viz., for engineering supervision of the work. It also alleges that when the contract was executed, the conditions existing at the time the bids were submitted had materially changed, and the cost of road construction had decreased. It is apparently upon this allegation that plaintiffs predicate their charges of tyranny, oppression, fraud, unseemly haste, and favoritism.

The record is, in part, a history of the various incidents leading up to and culminating in this suit. After the sum realized from the sale of the bonds had been placed to the credit of the road district fund, specifications for the construction of the roads named in the contract were properly made, and the usual advertisement for bids was published. There were five or six bidders for the work. The lowest bidders were S.A. Gano and the Standard Highway Company, Inc. The Gano bid was $368,862.20, and the bid of the Standard Highway Company, Inc., was $351,708.12, or $17,154.08 less than the Gano bid. Notwithstanding this vast difference in the bids, the board of supervisors of consolidated road district A approved and recommended to the police jury the acceptance of the Gano bid as the lowest responsible bid. The police jury accepted the approval and recommendation of the board of supervisors of the district without investigation, and executed a contract with Gano in accordance therewith. The Standard Highway Company, Inc., successfully attacked that contract in the lower court, and, on appeal, this court affirmed the judgment. 158 La. 294, 103 So. 819. The decree in that case is as follows:

"That the said police jury and board of supervisors be ordered and required to reject all of the bids submitted and readvertise the work for the construction of highways in said road district, or that they accept the bid of petitioner, Standard Highway Company, Inc."

This judgment was rendered March 9, 1925. The bid of the Standard Highway Company, Inc., was thereafter accepted by the police jury, and the contract with that company was executed by A.M. Edwards, president of the police jury, and W.A. Benton, president of the Standard Highway Company, Inc., at Ponchatoula, Tangipahoa parish, on March 18, 1925.

On April 14, 1925, the police jury, which body had originally appointed the three members of consolidated road district a board of supervisors, passed a resolution dismissing two of its appointees, viz., R.D. Fellows and James Jumonville, from further service as members of the board, and appointed two other resident taxpayers of the district to fill the vacancies thus created.

We are not now concerned with the suit which was filed by R.D. Fellows, James Jumonville, and three other taxpayers, because that suit was dismissed on an exception of lack of legal interest. Nor are we concerned with the title to office suits filed by Fellows and Jumonville, which were consolidated for trial and are now before this court on appeal, because we are handing down an opinion therein this day, in which we have ordered that both cases be transferred to the Court of Appeals.

The present suit was filed May 22, 1925, and it joins, as defendants therein, the police jury, the Standard Highway Company, Inc., and the two members of the board of supervisors who were appointed to fill the vacancies on the board created by the removal of Fellows and Jumonville. The police jury and the Standard Highway Company, Inc., before answering the suit, filed the following exceptions:

First, that the court is without jurisdiction ratione materiæ.

Second, that petitioners are without right, interest, or authority to prosecute the suit or to stand in judgment therein.

Third, misjoinder of plaintiffs.

Fourth, nonjoinder of parties defendant.

Fifth, lis pendens.

Sixth, no legal right or cause of action.

Defendants also filed an alternative plea of estoppel.

The trial court heard and overruled five of the defendants' exceptions, but the exception to the plaintiffs' right, interest, or authority to prosecute the suit and the exception of no legal right or cause of action were referred to the merits. In the judgment rendered the court overruled these exceptions.

In considering the exception to the right and interest of the plaintiffs to prosecute the suit, we find that the petition does not allege that the burden upon the taxpayers of the district has been increased by the award of the contract to the Standard Highway Company, Inc., but that the only alleged burden results from the issue of the bonds authorized by the vote of the taxpayers of the district and by the taxes levied and to be levied to retire these bonds. It is alleged that the police jury exceeded its authority in awarding the contract to the Standard Highway Company, Inc., without the recommendation and approval of the then board of supervisors of the road district; that the decree of this court that the board of supervisors and the police jury should readvertise for bids or award the contract to the Standard Highway Company, Inc., meant that the two bodies should act jointly in the award; that under the provisions of Act 99 of 1922, amending section 7 of Act 118 of the Extra Session of 1921, the board of supervisors of the road district is authorized to let contracts for road construction therein; and that the contract which was entered into omits a material stipulation of the specifications. The gravamen of the plaintiff's complaint relates to the relative power of the police jury and the board of supervisors of the road district in the matter of letting a road contract. This, in our opinion, is strictly a governmental or political question, entirely unrelated to questions concerning the monetary interests of the taxpayers. If it were not for the allegation in the petition that the contract with the Standard Highway Company, Inc., was let by a private transaction and without competitive bidding, it is our opinion that the petition does not otherwise allege a sufficient right or interest in the plaintiffs to prosecute this suit; but even the petition itself negatives that allegation, because paragraphs 17 and 18 thereof specially refer to the advertisement, specifications, and bids. The record shows that every legal requirement was complied with up to the time of the award of the contract to the Standard Highway Company, Inc., and it is clear that what really provoked the litigation was the action of the police jury in awarding the contract to the Standard Highway Company, Inc., according to the alternative decree of this court in Standard Highway Co. v. Police Jury,158 La. 294, 103 So. 819, without consulting the board of supervisors of the road district and because of the subsequent removal of two of the members of that board. The petition is filled with the pleaders' conclusions, all of which are deducible from those acts. When there is an alleged conflict of the power and authority of two governmental agencies, taxpayers, as such, have no right or interest to champion the cause of either in the courts. That is the real situation which is presented in this case, and we are of the opinion that the exception of no right or interest in the plaintiffs to prosecute this suit should have been sustained. This conclusion disposes of the case and renders it unnecessary to consider the defenses set up in the answer, or the merits as they are presented.

For these reasons the judgment appealed from is reversed, and it is now ordered and decreed that the exception of want of right or interest in the plaintiffs to prosecute this suit be sustained, and the suit dismissed at their cost in both courts.

On Rehearing.