Bright v. Ball , 138 Miss. 508 ( 1925 )

^* Headnote 1. Schools School Districts, 35 Cyc., p. 1123 (1926 Anno); 2. Schools School Districts, 35 Cyc., p. 1123 (1926 Anno); 3. Schools School Districts, 35 Cyc., p. 1123 (1926 Anno). The appellant, Bright, filed a petition in the chancery court against F.M. Ball, county superintendent of education, and J.J. DePriest, D.W. Duckworth, W. Frank Smith, Olon Grayson, and J.A. McCaskill, trustees of the Mt. Zion consolidated school district, alleging that the Mt. Zion consolidated school district is a legally established consolidated school district situated in Simpson county; that said DePriest, Duckworth, Smith, Grayson, and McCaskill are the trustees of said school district, and that said Ball is the county superintendent; that said trustees and said Ball, county superintendent of education, undertook to advertise and let contracts for the transportation of certain routes of the Mt. Zion consolidated school district of said county, and included in said advertisement route No. 2, known as the Duckworth route, seven and six tenths miles, having approximately thirty pupils, and that on the 11th day of August, 1924, they attempted to let said route No. 2 to one Leslie Roberts at and for the sum of sixty-nine dollars a month during the current session of said Mt. Zion consolidated school, but that their action in so doing was void for certain reasons set forth. It is alleged that it is the duty of said trustees and of the county superintendent of education to let the contract for the transportation of the pupils on said route No. 2 to the lowest responsible bidder who was able to make a solvent bond for the faithful performance of his contract, and that it was their duty to see that said bidder was physically able to perform such contract, and that such bidder was of legal age to be able to make a binding contract, and to guarantee the same with a solvent bond; that said trustees and county superintendent undertook to let said contract to said Roberts, who is a minor of the age of eighteen years, and therefore not of legal age to make a binding contract, and who is physically incapacitated to handle and drive a transportation truck which is used to carry the pupils to and from said school, by reason of the fact that his right leg and thigh is cut off near the body.

It is further alleged that the bond of the said Roberts was signed by two persons, Leonard Cole and Gilbert Evans, as sureties. It is agreed that they were solvent. It is alleged that by reason of his physical infirmity it is extremely dangerous for the said Leslie Roberts to drive said transportation truck during rainy weather, as there are hills and hollows to traverse, and in case of accident and injury the injured would be without protection or redress. It is alleged that by reason of the said facts the contract is void. It is alleged that complainant is a patron of said school and resides in said territory of said route No. 2, but will not place his children in the transportation truck driven by said Roberts because of the danger attached to such a course, and that his children are thus denied the benefits of said school. It is further alleged that said contract should be canceled, and a valid contract made with a responsible person to carry such children, and that a solvent bond be required for the faithful performance of said contract. The bill prays that said parties be made parties defendant and that they be enjoined from making any further payment, and that said contract be canceled and held void.

The bill was demurred to on a number of grounds: (1) That there is no equity on the face of the bill; (2) that the bill of complaint shows on its face that complainant has an adequate remedy at law; (3) that the bill fails to state a cause of action either at law or in equity; (4) that the bill shows on its face that the contract was made under the rules and regulations of the state board of education, and that the trustees and county superintendent exercised a discretion that the court is without jurisdiction to review; (5) that the contract, on the ground of the minority of the driver, cannot be canceled either at law or in equity, the minor only having the right to avoid the contract; (6) that the bill shows that the bond was signed by adults; and (7) that the bill shows on its face that if the bond is breached that complainant has a complete and adequate remedy at law against the adult defendants.

The demurrer was sustained, and on application an appeal to settle the principles was allowed.

By section 102, chapter 283, p. 440 et seq., Laws of 1924, it is provided that the trustees of a consolidated school together with the county superintendent are authorized and empowered to provide means for transportation of pupils living two miles or more by the nearest traveled road from the consolidated school to and from the schoolhouse in the district, under such rules and regulations as may be prescribed, etc. It is further provided that the expense of the transportation shall be paid from funds that would otherwise be used in the school from which pupils are transported, that said funds may be either from the county school fund or Sixteenth section funds, or from special levy on the district, etc. It further provides that there shall be a written agreement between the county superintendent and trustees of the school transporting such pupils. It is further provided that:

"In all cases where pupils are transported to and from the public schools of this state in vehicles under authority of law and at public expense, the control for such transportation shall be let to the lowest responsible bidder in such case, who is able to furnish a solvent bond for the faithful performance of his contract, after the route or routes over which such pupils are to be transported, has been laid out and established as hereinafter provided and after the time and place of letting such contract and the manner of bidding shall have been duly advertised for the time and in the manner now provided by law for letting any other public contract. All such contracts shall be in writing and define and prescribe the duties of the contractors or driver of transportation vehicles:"

It will be noted from reading this section that the contract is to be let to the "lowest responsible bidder," who in such case is able to furnish a solvent bond, etc.

The words "responsible bidder" generally carry the idea of being able to respond or to answer according to what is expected or demanded under the contract.

"`Responsible,' as used in a corporate charter providing that contracts for public improvements shall be let to the lowest responsible bidder, is not limited to financial, but means ability to perform all the conditions of the contract; and the commissioner of public works may reject a bid, notwithstanding it is the lowest made and the bidder is able to give the required bond, if, in the judgment of that official after due investigation, the materials customarily used and the workmanship exhibited by the bidder in the performance of the kind of work required are poor and unsatisfactory." 7 Words and Phrases, First Series, p. 6178, citing People v. Kent,160 Ill. 655, 43 N.E. 760.

"Act May 23, 1874, requiring all public work and materials which are capable of being contracted for to be awarded to the `lowest responsible bidder,' means the bidder lowest in amount and pecuniarily responsible. The word `responsible' as defined by Webster, is liable to accounting, accountable, answerable, able to discharge an obligation, or having an estate adequate to the payment of a debt. As used in the statute, it refers to the pecuniary ability of the bidder to answer to the undertaking, so that the interest of the city should suffer no damage. Lowest in price and responsible, in the sense of being accountable, or able to discharge the obligation so as to save the city from pecuniary loss, is what is intended by the act of 1874." 7 Words and Phrases, First Series, p. 6178, citing Gutta Percha Co. v.Stokely, 11 Phila. (Pa.) 219, 221.

"`Responsible,' as used in Act May 23, 1874, directing municipal officers to award certain contracts to the lowest responsible bidder, applies not to pecuniary ability only, but also to judgment and skill. The duties imposed on the city authorities are not merely ministerial, limited to ascertaining whose bid was the lowest and the pecuniary responsibility of the bidder and his sureties, but the statute called for the exercise of duties which are deliberative and discretionary." 7 Words and Phrases, First Series, p. 6178, citing Vitrified Brick PavingCo. v. City of Philadelphia, 164 Pa. 477, 30 A. 383; Reuting v. City of Titusville, 175 Pa. 512, 34 A. 916.

"The word `responsible,' in a statute authorizing the letting of contracts to the lowest responsible bidder, means something more than pecuniary ability, and refers to ability to promptly, faithfully, and conscientiously perform the work in question." 7 Words and Phrases, First Series, p. 6179, citing State v.Rickards, 16 Mont. 145, 40 P. 210, 28 L.R.A. 298, 50 Am. St. Rep. 476.

See other definitions in Words and Phrases, First and Second Series.

The statute here being construed, in our opinion, requires the letting of a contract to a person who is capable of making a binding contract so that he may be made to respond in damages for a breach of duty or for a failure to perform the contract. It also contemplates the letting of a contract to a responsible person in the sense that such person will be suitable and capable of looking after the children committed to his care, to the end that they may be safely transported. It is manifest that a person operating a truck large enough to carry twenty-five or thirty pupils over such territory as described in the bill would require a person who had the use of all his body. The operation of a truck of such size over such roads might be dangerous in the hands of a person, even though a skilled driver ordinarily, who did not have the use of all his body, both arms and both legs, available for the operation and control of the brakes of the truck in an emergency.

It is manifest that a minor under age could not be held to the performance of this contract. He might abandon the contract if such contract were let to him because of his suitable qualities as a person of discretion such as should have charge of school children, and he might abandon such work at any time to the inconvenience of the patrons of the school along his route. And should an accident occur a driver without the use of both arms and both legs might be seriously handicapped in rescuing the children from a perilous situation. In our opinion the law does not contemplate the letting of a contract to a person so handicapped. We are therefore of the opinion that the court should not have sustained the demurrer.

The judgment will therefore be reversed, the demurrer overruled, and defendant permitted to answer within thirty days after receipt of the mandate in the court below.

Reversed and remanded.