The times and democrat. [volume] (Orangeburg, S.C.) 1881-current, 1904-02-24

work, in which they declared not only,
that the plans were sufficient but that
IL the true intent and spirit Of them
was carried out the State would Sc
cure 4 good job. Not being ourselves
competent to pass upon o technical
point Of this nature, we knew no high
er or better authority to whom we
could refer the matter. That We had
secured most desirable contract un-
der sufficient specifications we felt con-
Vinced and satisfied when the other
bids submitted under them ranged up
as high as $212, 900, which seemed to
be the price necessary to justify that
contractor in engaging to erect the
work according to the accepted re-
quirements. The difference in the low
est bid and the one next to 1t Of nearly
$4,000, absolutely precluded any idea
Of collusion in awarding the contract.
There is a general impression fos-
tered by this report, If not created
thereby, that the act creating the COM
mission for the completion OF the State
house directed that said commission
should require bond from the con-
tractor. It will, therefore, be = sur-
prise to most members Of the general
assembly and the public to be informed
of the fact which is now stated, that
no such bond was required or sug-
gested by the legislature when defining
the duties Of the commission. There
being an utter absence Of any mention
Of q bond in connection Herewith, 1t
is clear that the bond actually taken
was one required by the commission
solely upon its own motion and in or
der the better to aid them in enforc-
ing the performance of the contract
which they entered into with Mc1lVain-
Unkefer company. We take the posi-
ton that this bond was not at any
time under the control of the legisla-
ture, and that it became, according to
it's terms, utterly null and void as soon
as this commission, acting through q
majority Of its members, expressed
itself as satisfied with the performance
Of the contract which it secured. The
commission having accepted the work
of the contractor, the bond given to
secure the performance of the contract
to the satisfaction Of the commission
became ipsc facto cancelled and an
nulled, when the commission expressed
itself satisfied with the job; and the
endorsement upon the bond was merely
ministerial duty done by the gov
ernor and which we are convinced he
could have been mandamused to do
under the circumstances. We are IN
formed by the members who belong to
the legal profession that If said bond
were now in possession of the officers
of the State unmarried by any endorse
ment, the plaintiff in interest could
not recover under the facts without
alleging and proving fraudulent COL
lusion as to acceptance OF the work be-
tween the commission, the obligeeS and
the contractors, the obligors, and the
members Of the investigating commit
, tee have given public assurance that
no such colluslon is even suspected
Furthermore, at 4 meeting held SUD-
seuuent to the endorsement made by
the governor, the attorney general re-
ported informally to the commission
that the governor had satisfied the
bond upon his legal advice.
THE OLD IRON AND OTHER JUNK.
1t was never the intention Of the
commission to reserve to the State
the old iron and other junk removed
from the building. Not only did they
believe that the contractor would al
blow more for it in his bid than they
could get for it otherwise, but Ques-
| tions would have been continually arls-
| ing as to the expense, ETC., OF removing
this old material, and Of getting 1t out
of the way 1t cost several hundred
dollars to get the old iron alone down
from the roof. Besides, the appropria-
ton for the work was limited, and the
commission desired to put in the bulld-
ing in value all that the funds at
their disposal permitted. Not only did
the architect, as the agent OF the COM
mission, inform the bidders personally
that the specifications would be SO con-
strued, (See opinion Of the attorney
general, exhibit HI, but there is abun-
dant evidence that all who filed a bid
for the work did so on the basis OF
getting in partial payment the old ma
terial that was removed. Mr.. J. 3.
Garfunkel. the man best qualified 10
know this fact, the man whom the
investigating committee itself sum-
moned to testify in regard to this old
material, swears that he knows or ms
own knowledge that the different DID
ders for the work filed their bids upon
the basis that the old material, all Of
it, would go to the contractor. (See
afidavit of J. B. Garfunkel. exhibit j.
If any further evidence Of this fact was
necessary the reply Of W. A. Chester
man, one Of the bidders. and OF j. e.
Burgess, another to the same effect, IN
response to 4 telegraphic inquiry that
C"In my capitol bid figured on all old
material being my property" See tel
egrams, exhibit g. should do so.
No one doubted for an instant that
not only as n matter Of right but under
the strict letter Of the law and the
contract this old material went to the
contractor, until over q year after the
contract was let, when Senator Mar
shall filed his protest. An investiga-
ton resulted, when the fact developed
that the COZ ractors had actually al
lowed the STATE n credit for this old
material in their estimate sheets.
Thereupon the attorney general gave
to the commission this opinion, which
has been completely ignored by the in
vestigating committee, notwithstand-
! ing the fact that it was in their pos
session: that not only Of right, but of
law, this material. under the contract,
was not the States. (See opinion at
torney general. exhibit H.
Every member Of the commission eX-
ccpt Senator Marshall believed had
they attempted to claim this Old ma
terial under all the circumstances, they
would have been acting not only un-
fairly, but dishonesty, with the con-
tractor The contractor had actually
given the State value for this material,
and the specitica tions had been so con-
strued and made absolutely plain be-
fore the bids were even filed. The peo-
ple of the State do not ask their pub
lie servants to do Il dishonest deed. In
our opinion it would have been dis
boract IN have ottpmDtcd to take from