The Montgomery advertiser., 1903-03-04
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HEAD NOTES OF THE DECISIONS
 OF THE ALABAMA SUPREME COURT

S<y~~S~SS&T~~V>-S~-s~ s~a" w. s~- s~ l and properly refused.
 Reversed and remanded. Opinion by Dowdell, J.
 sABEL & SONS V. SAVANNAH RAIL & EQUIPMENT co. Bill for Accounting by Partner.-Appeai from Montgomery City Court In Equity.
 l. Partnership, how created-To con- stitute a partnership there must be a valid agreement to enter into the part nership; and this contract must be exc ! cuted.
 ] 2. Same; contract.-Unless something IS done, or unless the agreement from it's nature operates in present., the contract | Is cxecutory, and either party may de- cline to carry it out as a partnership | agreement, though liable for specific per- l forma nee or for dana ses at law Tn proper cases.
 l 3. Partnership, when not created | Two parties agreed that. whichever of | them should nave Ihe opportunity 60 do so would purchase certain property upon ! the best terms possible, the property, | wheE purchased to be sold on joint &C., count; and the property was then pur- chased by one of the parties on his in-
  was notified thereof and requested to pay half of the purchase money If he wanted to be a half-partner, and this proposi- | ton was not al A~. d. Held: That contract of partne. --..p was not created
 Reversed and remanded. Opinion by Tyson, J.
 INGE, ct al, V. BOARD OF PUBLIC I WORKS OF MOBILE. Bill by Taxpayer to Declare Null and | Void Contract hy Municipal Corpora
 ton for Paving Streets.-Appeal from Chancery Court cf Mobile. i 1. Municipal corporations; injunction at suit of taxpayer.-Courts of equity, at the suit of taxpayers, have authority to enjoin municipal authorities from issuing illegal warrants or scrip, or misappro- priating public funds, or improperly cre- ating debts, or abusing corporate powers. l 2. Same; contracts; letting contract to lowest responsible bidder.-A provision in a municipal charter that certain con tracts, therein provided for. shall be let to the lowest responsible bidder, is man. datory, and a compliance with its pro- | visions is essential to the validity of such | contracts.
 l 3. Same: determnation of lowest re- | sponsible bidder-The determination of who is the lowest responsible bidder rests | not in the exercise of an arbitrary, un- limited discretion of the officer or board awarding the contract, but upon the ex- ercise of bona f1de judgment based upon facts tending reasonably to the support | of such determination.
 l 4. Same; fraud and gross abuse in l awarding contracts.-In the absence of | fraud or gross abuse, the courts will not | interfere with the exercise of discretion | Y administration boards in their deter imitation of who is the lowest responsible | 5. Same; acceptance of bid as deter imitation that bid was let to lowest re- ! spohsible bidder Where the action of a municipal board in the letting of a con- tract Is assailed, and 1t is directly charg- ed that the letting was not to the lowest responsible bidder, as required by char ter, 1t will not be presumed from the mere acceptance of a certain bid by the board, that the board in the exercise of it's judicial discretion, after due consid- erauon of all bids, determined such one | to be the lowest responsible bidder. | 6. Same; contract not in accordance | with terms of bid as published-An ad- l ditional stipulation in a contract, award ed to one who is not the lowest bidder, whether of advantage to the city or not, will invalidate the contract. If it consti- tutes a material change and a departure from the basis of bidding as published, and becomes an element for consideration in determining who is the lowest and l best bidder.
 !. Municipal corporations; contract for street paving; assumption by contractor of city's liability for damage.-A con- tract for street paving, whereby the con tractor assumes 'all risk of damag to property along or near the line of work, | Is void. and may be so declared at the suit of a taxpayer. as it naturally tends | to increase the amount bid for the con | tract and to increase the burden to be borne by the taxpayer and abutting prop | erty owners.
 | 8. Same; stipulation in contract against employment of alien or convict labor.- A stipulation against the employment of alien or convict labor. contained in the stipulations which formed the basis of the bids for a contract for street paw ing, renders the contract void being op- posed to the interests of the taxpayer, by narrowing the field for the employment of labor and thereby tending to increase the amounts bid
 g. Constitutional law validity of as- sessment for street paving; charter of | Mobile.-A provision in a municipal char l ter, providing for the assessment against | property owners of the costs Of street. paving or improvements. to be measured by the special benefits accruing to said 1 property or property owner by reason of | said paving or improving and in no case to exceed $4 per front foot" is not vio- lative of Section 223 of Constitution of Alabama, 1901, providing that No muni- cipalty shall make ny assessment for the costs of street paving in excess of the increased value of such property by reason If the special benefits derived from such improvements"
 10. Same -Wh, gre there is room for the statutory provision for assessment with in the constitutional ir7 ':ati5n, and
 work has been lone m lsr the contract and 1t does not appear "hat will be the amount of the assessment when made, it cannot be assumed that the assessment, when made under the measure fixed by the statute. will exceed the amount linn ited by the Constitution,
 II. Contract for paving streets, valid ity of as affected by possible failure to collect assessment against abuttng prop erty.--A contract for paving city streets is not rendered invalid by the fact that the authority granted by the Legislature to pave the streets involves a consider able outlay, and that 'n the event of a | failure to collect the assessments again st