#### HOFFMAN v. CITY OF MT. PLEASANT et al.

No. 1926—6498.

Commission of Appeals of Texas, Section A.

Jan. 8, 1936.

J. A. Ward, of Mt. Pleasant, for appellant.

Hiram G. Brown and Seb F. Caldwell, both of Mt. Pleasant, and Greenwood,

Moody & Robertson, of Austin, for appel-lees.

John D. McCall, of Dallas, amicus curiae.

GERMAN, Commissioner.

Appellant, August Hoffman, filed suit in the district court of Titus county to have declared void certain time warrants of the city of Mt. Pleasant in the sum of $45,000, issued November 25, 1931. These warrants were issued for the construction of a new septic tank, filter bed, mains, and other replacements and improvements of the existing sewer system of the city. The trial court denied a temporary injunction, and an appeal was taken from the order denying same.

The Court of Civil Appeals has certified to this court the questions hereinafter set out.

The warrants are claimed to be void because of the failure to comply with section 2 of House Bill 312, chapter 163, General Laws of the Forty-Second Legislature, shown as article 2368a in Vernon’s Texas Civil Statutes, in that the contract was not submitted to competitive bids and the notice required by said section 2 was not published. The whole case turns upon the proper construction to be given the proviso in said section which proviso is as follows: “Provided, that in case of public calamity, where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens, or to preserve the property of such county or city, or when it is necessary to preserve or protect the public health of the citizens of such county or city, or in case of unforseen damage to public property, machinery or equipment, this provision shall not apply; and provided further, that it shall not be applied to contracts for personal or for professional services, nor to work done by such county or city and paid for by the day, as such work progresses.”

The trial court, in denying temporary injunction, made a finding that the work for which these warrants were issued was the “erection of a sanitary sewage system and disposal plant for the City of Mt. Pleasant, which the court finds was necessary for the protection of public health.”

It is the contention of appellant, briefly stated, that it is only in case of public calamity, bringing about conditions which make it necessary to act at once without notice, to preserve or protect the public health, that the requirement of publication of notice for competitive bids may be disregarded. In *194other words, that the exception “or when it is necessary to preserve or protect the public health of the citizens of such county or city” is not operative except in case of public calamity.

The matter is one purely of statutory construction. After careful consideration of the whole act as well as the peculiar language of the exception, in light of the rules usually applicable when statutes concerning public health are involved, we have reached the conclusion that the use of the word “when” clearly indicates the introduction of a new condition and exception not dependent upon a “public calamity,” and that the requirement of competitive bids with publication of notice of letting the contract is dispensed with when such exception exists. In other words, we are of the opinion that, “when it is necessary to preserve or protect the public health of the citizens of a county or city,” a condition requiring prompt and unrestrained action in order to remedy such a situation exists, regardless of whether such condition has been brought about by a public calamity or in some other way. The words “preserve” and “protect,” as applied to public health,carry the idea of timely, efficient, and effective action which keeps intact and unimpaired the good health of the citizens in advance of its impairment. They cannot reasonably be construed as pertaining solely to the improvement and repair of health already impaired or in immediate peril be-, cause of a public calamity. We are of the opinion that, if the Legislature had intended that a public calamity was essential before this exception was to become operative, it would not have used the words “or when it is necessary.” The language in that event would have appropriately read as follows: “Provided, that in case of public calamity, where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens or to preserve the property of such county or city or to preserve or protect the public health of the citizens of such county or city.” The use of the words “or” and “when it is necessary” was unquestionably designed for the very purpose of making the public health clause independent of the limitation relating to public calamity.

The Court of Civil Appeals has certified the following questions which we answer as indicated:

> “Question 1. Answer whether or not, in the circumstances, it was legally essential to the validity of the issuance of the time warrants based upon' the improvements, made without competitive bids, that a condition of public calamity must have existed by reason of which a necessity for immediate action arose to protect the public health.” To which we answer “No.”

> “Question 2. Answer whether or not, in the circumstances, the warrants mentioned were authorized to be issued, without competitive bids, upon the fact alone that such improvements for which the warrants were issued were necessary for the protection of public health.” To which we answer “Yes.”

> “Question 3. Answer whether or not said House Bill 312 should be so construed that in order to put the improvements mentioned within its proviso exempting notice, competitive bids and right of referendum there must have existed: (1) a condition of public calamity, (2) by reason of which a necessity arose, (3) to preserve or protect the public health.” To which we answer “No.”

> “Question 4. Answer whether or not, in the circumstances, the time warrants under consideration were validated by Senate Bill 49, chapter 40, 1st Called Session of the 42nd Legislature [Vernon’s Ann.Civ.St. art. 2368b].” In light of what has been said, it is not necessary to answer this question.

Opinion adopted by the Supreme Court.