Untitled Texas Attorney General Opinion ( 1939 )

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