RoiMrable Julian Montgomery 

St&it6 Hlghwis;y Eng'lneer 

St&e Rlghnlls Department 

Austin, Texas . 

Dear Sir: Opinion No. O-1351 

Re: Legality of certain prijvlsldns 

of'the speclflcatlons and contract of the Neches River Bridge. 

We acknowledge receipt of your letter of August 17, 

1939, 1i1 which you request the opinion of this departmerit ofi-‘ 

thelegality oi~the foll.owlng two provisions of the speclflcaMona and contract of the Neches River Bridge: 

(1) ~~f;gP~o~Jr;;;lcle 5, on page 30, 

: 

"Rejected materials shall be'removed 

frtim the vlclnitg of the'work, and the contractor shall promptly r&mov*, reconstruct, 

replace; and make good, as may be directed, 

without oharge, any defective work. Oversight or errbr (In) judgment of Inspectors 

or prevloUs acceutance shall not relieve' 

the contractor from the obligations to 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~cleaning a~nd painting, and any finished painting 

that proves.to b‘e defective shall have the 

metal recleaned and the entire palntlng.hereIn speblfled applied. 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"~terms of the contract will result 

in such a"'vFolatlofib A contract Is Illegal If the"~terms of 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, 

oti is: p%irt thereof for an unlawful purpose. See 10 Tex. Jur';, 

Paragraph 1.06, at page 183, and iiiithorltles therein cited; also 

10 Tex. Jur., Paragraph 107, at page 185, and authorities 

therein cited. 

The following quotation Is from I.0 Tex. Jur., Paragraph 103, on page 190: 

"Generally speaking, a contract which Is 

nbt In Itself lminoral or in contravention of any 

law Is-not contrary to public policy. But there 

Is iio absolute rule by which tb determine whether 

a."particular contract Is contrary to public policy; 

each case must be judged by Itself. 

"Public policy permits the utmbst.ffeedom 

of contracts bbtween piirti~es of full tige, and competent~underatandlng; and requ‘ires that their contr&ts, when fri+ely ahd voluntarily entered 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 dtiubtful cases, thii pi+esumptlon 

Xs in favor of the validity of the transactlon; 

and where public pbllcy IS not settled by-'recognlzed principles, a contract‘wlll W6 declared to 

b& in contpaventlon of It only ln.cases in which 

the Injury to the public is clear:" 

We know of n0 constitutional provIslon, statute, or 

ordinance which Is violated by the contractual provisions above 

set out ivld referred to; nor do we find involved in these provisions any question of public policy. 

It Is therefore, the opinion of thls.department that 

the provislors of the specifications and contract.of the Neches 

RlverP Bridge hereinabove set out are legal and may properly be 

made a portioti of said conti?act. 

Yours very truly 

ATTORNEYGENmL OF,TEXAS 

RC:FG:wc By s/Ross Carlton 

APPROVBD SEP 7, Ross Carlton 

s/Gerald C. Mann 

1939 Assistant 

ATTORNEYGENERAL OF TEUS 

Approved Opinion Committee By s/&B Chairman