Quin v. Pike County , 94 Miss. 356 ( 1908 )

Mayes, J.,

delivered the opinion of the court

Chapter 119, § 1, p. 153, of the Laws of 1900, provides that the board of supervisors of the various counties of the state of Mississippi may, at the regular April term, or any other regular meeting after the passage of the act, meet and classify the public roads in their respective counties as roads of the first-class and roads of the second-class, which roads are to be divided into convenient links and worked by contract. By section 11 of the act it is provided that the act shall have no application to any county in the state, except it be so ordered by the board, which order shall be entered on the minutes of the board. At the regular May term in 1902 the board of supervisors of Pike county, by an order duly entered on the minutes, adopted chapter 119 as the road law for that county. Subsequently the board classified the public roads of the county into roads of the first-class and roads of the second-class, and divided same into convenient links, and inspected same as required.. After noting the character and amount of work necessary to make them good 'and acceptable highways, the board made plans and specifications for the working of the roads and filed same with the clerk of the board of supervisors for t-he inspection of prospective bidders prior to the letting of the contract. After this was done the board advertised for bids as required by section 5 of the act, and let thhe contracts for working the public roads of the county.

Appellant, Quin, appeared and bid for the working of all the roads in the second and third districts at an aggregate value of $95 per mile for each of the districts. The bid made by Quin ivas made as a lump bid for the whole work to be done on the-roads in the second and- third supervisors’ districts, and was not for each separate link advertised. The contract was duly let. to him, and the aggregate amount of his bid for the two districts-amounted to- $24,272.50, for the three years for which the contract was let. The other three districts were bid upon by other-parties in the same way, and let ont to one D. M. Simmons and Smith & "Winborn, so that all the roads of the county were let to be worked by contract. Quin duly executed a bond for the--sum of $24,224, which bond was received and approved by the president of the board of supervisors. After being awarded' the contract and executing the bond, Quin entered upon the-' work of the road. The county paid him for services rendered under tliis contract tlie sum of $19,853, leaving a balance due of $4,419.50. After full performance of tbe contract Quin made demand on tbe board for tbe balance due bim, wbicb it declined to pay, whereupon be brought this suit.

There are two counts in tbe declaration, one on tbe contract as made and tbe other on a quantum meruit. A demurrer was-interposed by the county to both counts on tbe ground, first,, -that tbe declaration states no cause of action; second, that the declaration did not show by sufficient averment that tbe board of supervisors of Pike county put in operation tbe machinery provided by law for working tbe public roads by contract, and that tbe declaration did not show that tbe roads were divided and classified as provided by law; third, that tbe contract showed that tbe working of tbe roads was a contract for the-working of tbe second and third districts of Pike county, and not for working tbe public rqads of tbe county as an entirety, or-by links and sections; fourth, that tbe contract is null and void,, because tbe board of supervisors bad no authority to make any such contract; fifth, that tbe second count undertakes to recover on a quantum meruit. This demurrer was sustained by tbe court, and tbe suit dismissed.

Tbe declaration shows almost a literal compliance by the board of supervisors with every provision of the law in regard to working tbe roads by contract under tbe act above cited; tbe exception being in approving a bond for a little less than tlie amount of Quin’s bid, the effect of wbicb we will notice later. Tbe board adopted tbe law in tbe manner required by chapter 119, and entered tbe order on tbe minutes. Afterwards it inspected and classified tbe roads into roads of tbe first and roa da of tbe second-class, and divided them into convenient links. After this they advertised tbe letting of tbe contracts as required by section 5. The contract was made in accordance with tbe requirements of this section; that is to say, they were let for a period of three years. In tbe specifications advertising those roads tbe links appeared as required by-law, and there was nothing in law or in fact to prevent any one from bidding•on any separate link so advertised, or on the whole or any part of the work to be done in the county. Nothing in the declaration shows that the board of supervisors precluded bids for separate links; but all they did was to accept the bid of Quin at an •aggregate value of $95 per mile to work all the roads in supervisor’s districts two and three. There is nothing in the law forbidding the board of supervisors from accepting or making such a contract; that is to say, for an entire supervisor’s district. In order to make this contract valid it was not essential that each link should be contracted for separately. In furtherance of the best interest of the county the board could have accepted a bid for any link, or for any two or more links, or for .all the links advertised in any supervisor’s district, or for all the links advertised in one or more of the districts, at an aggregate value.

The case of State v. Vice, 71 Miss. 912, 15 South. 129, has no application to this case. That case was decided under section 3929, Code of 1892, which provided that each road or subdivision should be let under a separate contract, but the board of supervisors in disregard of this provision let the work in a lump contract, and the court held that the, contract was void. There is no such provision as this in the Act of 1900. Nor is ■there anything in the Act of 1900 which requires a contract to be made for each division or road let. The facts in the case of State v. Edwards, 81 Miss. 399, 33 South. 172, make a very ■different case from the one presented by this record, and that ■case cannot be used as authority for any of the contentions made on the part of appellee. In the case of Elmore v. State, 81 Miss. 422, 33 South. 225, the opinion shows that the indictment did not charge that the board of supervisors had done any ■of the things which the law required to constitute a valid contract. The court held, on a demurrer to an indictment against a party charged .with violating the contract, as a matter of course, that because of the failure on the part of the board to mate a valid contract no prosecution could be conducted against a contractor under section ten of tbe act for neglect of duty under the contract.

The only other point relied on by appellees is the fact, that the amount of the bid made by Quin was for $24,272.50, and the bond given was only $24,224. The bond given was for a little less than the bid, whereas the law provided that it should not be less than the amount of the bid. It is manifest that this-was a mere unintentional error on the part of the board, not substantial in nature or an intentional disregard of the statute. We do not think this irregularity is sufficient to invalidate the-contract in this case. In the Edwards case, supra, the facts show that the board affirmatively ordered a bond to be executed' in violation of the positive requirements of the statute. Such is not the case here, nor is there any substantial discrepancy.

The judgment is reversed and cause remanded.