
    BASHAM v. HOLCOMBE, Mayor, et al.
    (No. 8273.)
    (Court of Civil Appeals of Texas. Galveston.
    March 15, 1922.)
    1. Appeal and error <&wkey;954(2) — Refusal of ' temporary injunction not interfered with except for abuse of discretion.
    The refusal of a temporary injunction will not be interfered with on appeal unless there has been an abuse of the broad discretion vested in the trial court.
    2. injunction <&wkey;>!47 — Refusal of temporary injunction to restrain execution of contract by city held not an abuse of discretion in view of testimony of defendants.
    The refusal of a temporary injunction to restrain the execution by a city, of a contract for public improvements because the charter provisions governing the mating of such contracts had not been complied with was not an abuse of the trial court’s discretion, where the officers of the city testified they had no intention of making the contract until the charter requirements had been fully complied with.
    3. Municipal corporations <S&wkey;335(I) — 'Officials can accept bid before money is in city treas-sury, if contract is not made until compliance with charter requirements.
    The officials of a city can accept a bid for public improvement work before the required money to pay for the work is in the city treas-sury and before a proper ordinance authorizing the contract has been adopted, provided they do not enter into the contract until the requirements of the charter have been fully complied with.
    4. Injunction <&wkey;l 14(3) — City and contractor are necessary parties to suit to restrain city officers from contracting for public improvements.
    In a suit to restrain the officers of a city from entering into a contract on behalf of the city for the construction of public improvements, the city and the contractor are necessary parties, since their interests are directly and vitally affected.
    Appeal from District Court, Harris County; Chas. Eashe, Judge.
    Suit by Charles S. Basham against Oscar F. Holcombe, as Mayor, and others. From a decree dissolving a restraining order and refusing an application for injunction, plaintiff appeals.
    Affirmed.
    C. F. Stevens and Kenneth Krahl, both of Houston, for appellant.
    . Sewall Myer and W. Ray Scruggs, both of Houston, for appellees.
   GRAVES, J.

In this petition, Charles S. Basham, a taxpaying citizen of the city of Houston, appeals from a decree of the Eleventh district court of Harris county dissolving a restraining order previously issued in the matter and refusing his application as-such resident for an injunction against the-mayor, the commissioners, and the comptroller of the city to restrain them from, in their-official capacities, entering into a contract with Charles K. Horton for the construction of certain improvements at the; city’s cotton shed and wharves adjacent to the Turning Basin, as well as from paying him anything-for a portion of such work alleged to have-then already been done by him. Neither the city of Houston nor Mr. Horton had. been made parties to the action.

No brief for appellant has „ been filed in this court, but the cause has been heard hereupon briefs for the appellees, as well as upon oral and written arguments for both sides.

Appellant’s contention that injunction in the two respects as prayed for should have been awarded him rests mainly upon these averments in his application for the writ:

(1) That the mayor and city commissioners on September 26, 1921, after due advertisement therefor, received competitive bids for-the work, Charles K. Horton’s being $114,-173.20, while his own (appellant’s) was only $113,639.75, which lower amount, in view of his responsibility and competency to carry out his undertaking, constituted the most advantageous bid for the city; that, notwithstanding this, the officials named, on October 24, 1921, at a time when the comptroller of the city had not certified that the money requisite for such work was in the city’s treasury unappropriated for any other purpose, and there was in fact no such money in the treasury, nor had any appropriation been made therefor, attempted to award the contract to Horton, in violation of section 19a of article 2 of the charter of the city of Houston.

(2) That despite the fact that no legal contract had been entered into with him, Charles K. Horton had prior to that date proceeded to do part of the work under the purported-contract of October 24, 1921, at an approximate cost of $10,000, and the city officials were about to pay him that sum therefor.

The trouble with the position thus taken is that the facts were not proven as so alleged; the application setting out these grounds for the injunctive relief sought was filed December 31, 1921, but the answer of the officials sued — interposed by way of motion to dissolve the restraining order issued by the court on original presentment tó it of the petition — did not come in until the same day the judgment vacating this preliminary writ and refusing the injunction was entered, that is, on January 7, 1922; in this answer the city officials, as of that date, denied under oath that they had made any such contract on October 24, 1921, or at all, or that they contemplated making one or paying Charles K. Horton anything until a legal and valid agreement in all respects as provided by law and ordinance bad first been entered into between bim and tbe city of Houston.

Tbe substance of further answering aver-ments was that, if Horton bad done any advance work, it was upon bis own responsibility without .agreement of any sort from tbe city; that Basham’s bid was not in fact tbe lowest and best one, in that tbe basis on which the bids were called for and received was upon all work exclusive of general excavation, and, when all bids entered were considered upon that basis, Horton’s was tbe lowest; that on receiving tbe several bids made the city council bad carefully considered them all, and bad in good faith exercised its discretion in then voting that tbe contract be awarded to Horton for tbe reason that bis was in reality not only tbe lowest but tbe best bid for tbe city, be being, in tbe council’s judgment, in point of equipment and experience in better position than tbe other bidders to promptly and satisfactorily complete tbe work; that subsequently, on January 3, 1922, the comptroller bad certified to the council that the necessary money for this work was then in tbe treasury unappropriated to any other purpose; and that, thereupon, tbe city council bad on tbe same day passed an ordinance authorizing and instructing tbe mayor to enter into a contract with Charles K. Horton, pursuant to tbe prior acceptance of bis bid.

Expression of tbe city’s intention — unless enjoined in this cause — -to sign the contract as thus authorized, and, on tbe completion of tbe work as therein specified by Horton, to pay bim the agreed price therefor, was then specifically stated.

Tbe answer thus contained full denial under oath of all material allegations of tbe bill of plaintiff below. Before entering tbe judgment complained of, tbe trial court, on the same day, January 7,1922, beard tbe evidence which was sufficient to support, among others' not deemed material, these findings-: (1) That, after having properly received bids for the work, tbe city council, on October 24, 1921, passed a motion accepting Horton’s bid and instructing tbe city attorney to draw tbe necessary ordinance as provided by charter; (2) it being then ascertained that there was not sufficient money in tbe city’s treasury available for this work, tbe passing of tbe necessary ordinance and awarding tbe contract to Horton was held in abeyance until there were such funds; (3) that the requisite funds became available, and tbe comptroller duly so certified on January 3, 1922, whereupon an ordinance was passed appropriating money for tbe work, formally awarding the contract to Horton, and directing tbe mayor to execute it on tbe prescribed requisites being complied with; (4) that no such contract had been executed on tbe part of tbe city at the time of this judgment below, and tbe city officials as witnesses then assured tbe court that none would be until this suit was disposed of; (5) that tbe city, council, acting in good faith and in tbe proper exercise of its .official discretion, bad, before directing tbe award of the contract to Horton, determined that bis bid was tbe lowest secure bid for tbe work and tbe one of most advantage to tbe city, regard being bad to tbe basis on which tbe bids were submitted; (6) that while Horton bad between September 27, 1921, and January 7, 1922, done certain excavation work and assembled certain materials for use in tbe construction of these improvements, be bad done so on bis own responsibility and without any contract, agreement, or understanding of any kind on the part of tbe city of Houston.

Such was tbe status of this matter when tbe trial court heard tbe cause and refused tbe injunction prayed for on January 7, 1922.

It seems that this ordinance of January 3, 1922, under recitation therein of there being a public emergency requiring it, was both passed finally and approved on the date of its introduction; but, while tbe record as brought .up here does not show any subsequent proceedings relating to it, tbe leading counsel for tbe appellees, in oral argument before this court, made assurance that no contract with Mr. Horton bad been executed by tbe city under that ordinance, that it bad been set aside and in lieu thereof, as authority for tbe contemplated contract, another ordinance bad been passed which was, or would be, read in full at three regular meetings of the council, pursuant to article 2, § 9, of tbe Houston city charter, requiring that procedure for 'appropriations involving more than $1,000.

Tbe action of a trial court in grahting or refusing a temporary injunction will not be interfered with on appeal unless there has been an abuse of its broad discretion (Sutherland v. City [Tex. Civ. App.] 225 S. W. 63; Electric Co. v. City [Tex. Civ. App.] 212 S. W. 198), and we are unable 'to bold that any such result appears in this instance. If, as tbe mayor and other city officials testified, no contract bad actually been made at the time of this bearing and none was contemplated until all tbe provisions of tbe charter — including tbe one requiring the reading in full of tbe supporting ordinance at three regular council meetings — had been complied with, it follows that nothing in derogation of the charter, qr otherwise illegal, was involved. At any rate, the court necessarily so found, and, as tbe appeal is presented here, there is nothing pointed out on which this court could reach a contrary conclusion.

It goes without saying that a judgment of affirmance in these circumstances would in no wise be binding upon or prevent appellant from complaining should tbe appellees, • subsequent to the trial court’s order, enter into the contract in question without having the necessary ordinance read in full at three regular meetings.

Since no fraud or bad faith on the part of the officials moved against was either alleged or proven, and no provisions of the controlling authority, the city charter, are shown to have been violated, the most that can be said of the entire course of the transaction is that the council accepted the bid of Horton on October 24, 1921, and then held in abeyance the making of a contract with Mm until that could be done in full compliance with the charter provisions. We know of no valid reason for holding that this could not be done, when the charter nowhere prescribes the time within which contracts inust be let after bids are received, but otherwise, by section 2 of article 2, confers powers upon the council in matters of this sort so broad as to be limited only by the provisions of that instrument itself, and those of the state Constitution.

For an additional reason the trial court’s refusal of the injunction must be sustained; although the suit was an effort to restrain the officials of the city from making a contract on its behalf with, and from paying out its money to, a designated person, neither the city itself nor the person affected were made parties, as has been before stated. Under well-settled authority, both were necessary parties to a proceeding so directly and vitally affecting their interests. Eames v. Kellar, 102 App. Div. 207, 92 N. Y. Supp. 665; Renshaw v. Arnett (Tex. Civ. App.) 158 S. W. 1197; Texas Co. v. Daugherty (Tex. Civ. App.) 160 S. W. 129; Moore v. Held, 73 Iowa, 538 35 N. W. 623; Turner v. Cruzen, 70 Iowa, 202, 30 N. W. 483; Bradford v. Westbrook, 39 Tex. Civ. App. 638, 88 S. W. 382; Pendleton v. Ferguson, 99 Tex. 296, 89 S. W. 758; Ramsay v. Marble Rock, 123 Iowa, 7, 98 N. W. 134.

The judgment has been ordered affirmed.

Affirmed. 
      
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