Gilsonite Construction Company v. Arkansas McAlester Coal Company

• Decision Date: 11 June 1907
• Citation: 103 S.W. 93,205 Mo. 49
• Parties: GILSONITE CONSTRUCTION COMPANY v. ARKANSAS McALESTER COAL COMPANY, Appellant; TWITCHELL et al
• Court: Missouri Supreme Court

103 S.W. 93

205 Mo. 49

GILSONITE CONSTRUCTION COMPANY v. ARKANSAS McALESTER COAL COMPANY, Appellant; TWITCHELL et al

Supreme Court of Missouri, Second Division

June 11, 1907

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded (with directions).

Milton Moore and L. A. Laughlin for appellant.

(1) The recommendation of the Board of Public Works to the Common Council, made August 11, 1896, is void. St. Louis Q. & C Co. v. Von Versen, 81 Mo.App. 519; Schoenberg v Field, 95 Mo.App. 241. (2) Ordinance 7535, providing for the doing of the work, is void. Haezele v Mallinckrodt, 46 Mo. 577; St. Louis v. Clemens, 43 Mo. 395; Ruggles v. Collier, 43 Mo. 353; St. Louis v. Clemens, 52 Mo. 133; Welty on Assessments, sec. 282, notes 6 and 7; Haag v. Ward, 186 Mo. 325; Dickey v. Holmes, 109 Mo.App. 721; Neill v. Gates, 152 Mo. 594; Police Relief Assn. v. Tierney, 116 Mo.App. 460; Sedalia v. Donohue, 190 Mo. 422; City of Unionville v. Martin, 95 Mo.App. 36; Childers v. Holmes, 95 Mo.App. 158; Thompson v. City of Boonville, 61 Mo. 282; Rich Hill v. Donnan, 82 Mo.App. 386; Schoenberg v. Field, 95 Mo.App. 247; Ramsey v. Field, 115 Mo.App. 630. (3) The selection by the Board of Public Works of American Bituminous Rock as the paving material was void. Kirksville v. Coleman, 103 Mo.App. 215; West v. Porter, 89 Mo.App. 150; Cole v. Skranika, 105 Mo. 303. (4) The award of the contract was void. Dickey v. Holmes, 109 Mo.App. 721; Kirksville v. Coleman, 103 Mo.App. 215; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Carzill, 60 Mo. 316; Heidelberg v. St. Francois Co., 100 Mo. 69; City of DeSoto v. Slowman, 100 Mo.App. 323; St. Louis v. Gleason, 89 Mo. 67, 93 Mo. 33; Galbreath v. Newton, 30 Mo.App. 394; Guinotte v. Egelhoff, 64 Mo.App. 366; Pacific Elec. Co. v. Los Angeles, 118 F. 753; Mazett v. Pittsburg, 137 Pa. St. 693; Brady v. New York, 20 N.Y. 312; McQuiddy v. Brannock, 70 Mo.App. 535. (5) The acceptance of the work by the city engineer was void. Hill O'Meara Const. Co. v. Hutchinson, 100 Mo.App. 294; Heman v. Larkin, 108 Mo.App. 392; Bank v. Payne, 31 Mo.App. 512; 7 Am. and Eng. Ency. Law (2 Ed.), 120, 121; Hilgert v. Barber Asphalt Pav. Co., 107 Mo.App. 385; Neill v. Gates, 152 Mo. 585; Childers v. Holmes, 95 Mo.App. 155; Barber Asphalt Co. v. Ridge, 169 Mo. 376; Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535; Whittemore v. Sills, 76 Mo.App. 248; Safe Deposit Co. v. James, 77 Mo.App. 616; Ayers v. Schmohl, 86 Mo.App. 349; Winfrey v. Linger, 89 Mo.App. 159; Redlands Orange Assn. v. Gorman, 161 Mo. 203; St. Louis Trust Co. v. Tork, 81 Mo.App. 342; Davis v. Smith, 15 Mo. 467; Shouse v. Neiswanger, 18 Mo.App. 236; Hall v. School District, 24 Mo.App. 213; Brinkerhoff v. Elliott, 43 Mo.App. 185; Beatie v. Coal Co., 56 Mo.App. 221; Harrison v. Railroad, 74 Mo. 364; Schaibel v. Merrill, 185 Mo. 534; Hund v. Rackliffe, 192 Mo. 312; Schoenberg v. Heyer, 91 Mo.App. 389; Barber A. P. Co. v. Munn, 185 Mo. 552. (6) The computation and apportionment of the cost of doing the work are void. Heman v. Gilliam, 171 Mo. 258; Hund v. Rackliffe, 192 Mo. 312; Rich Hill v. Donnan, 82 Mo.App. 386; Sedalia v. Gold, 91 Mo.App. 382; Bank v. Ridge, 62 Mo.App. 324. (7) The lien of the taxbill had expired by limitation. Burnes v. Ballinger, 76 Mo.App. 58.

Frank Hagerman and Kimbrough Stone for respondent.

(1) Attitude of courts toward taxbills. Asphalt Pav. Co. v. Ullman, 137 Mo. 568; Haughaumt v. Raymond, 83 P. 54. (2) Validity of recommendation of Board of Public Works. Charter of Kansas City, art. 9, sec. 2; Bambrick v. Campbell, 37 Mo.App. 460; Barber Asphalt Pav. Co. v. Field, 188 Mo. 200. (3) Validity of ordinance authorizing the pavement. Charter of Kansas City, art. 9, sec. 2; Sheehan v. Gleeson, 46 Mo. 100; Moran v. Lindell, 52 Mo. 229; Carlin v. Cavender, 56 Mo. 288; Becker v. City, 94 Mo. 380; Asphalt Co. v. Ullman, 137 Mo. 570; Galbreath v. Newton, 30 Mo.App. 392; Roth v. Hax, 68 Mo.App. 287; State v. Mayor, 3 Vroom 49; State v. Morristown, 5 Vroom 445; Stone v. Cambridge, 6 Cush. 270. (4) The selection by the Board of Public Works of American bituminous rock as the paving material, was valid. Charter of Kansas City, 1898, art. 9, secs. 2, 22; Asphalt Pav. Co. v. Ullman, 137 Mo. 568. (5) The specifications were not incomplete at time of advertisement for bids. Revised Ordinances 1898, secs. 811, 815. (6) Acceptance of work by city engineer. Steffen v. Fry, 124 Mo. 630; Charter of Kansas City, art. 9, sec. 18; Asphalt Pav. Co. v. Ullman, 137 Mo. 543; Heman v. Gilliam, 171 Mo. 271; Schibel v. Merrill, 185 Mo. 547; Allen v. Labsap, 188 Mo. 696; Paving Co. v. Munn, 185 Mo. 570; Carlin v. Cavender, 56 Mo. 286; Smith v. Westport, 105 Mo.App. 226. (7) The computation and apportionment of the cost were valid. Kefferstein v. Knox, 56 Mo. 189; Nash v. Craig, 134 Mo. 358; Heman v. Loevy, 179 Mo. 455; Nevada v. Morris, 43 Mo.App. 586. (8) The lien of the taxbill had not expired by limitation. Charter of Kansas City, art. 9, sec. 23; Ross v. Gates, 183 Mo. 349; Ross v. Gates, 117 Mo.App. 236. (9) Constitutional question. Charter of Kansas City, art. 9, sec. 23; Sheehan v. Owen, 82 Mo. 465; St. Louis v. Marchel, 99 Mo. 475; Saxton Bank v. Carswell, 126 Mo. 426; State v. Springer, 134 Mo. 224; Kansas City v. Kimball, 60 Kan. 224; Kansas City v. Gray, 62 Kan. 198; Doran v. Barnes, 54 Kan. 238; Kansas City v. Ins. Co., 10 Kan.App. 578; Kansas City v. Mowbray, 10 Kan.App. 578; Wahlgren v. Kansas City, 42 Kan. 243; McMillen v. Anderson, 95 U.S. 37; Pennoyer v. Neff, 95 U.S. 714; Davidson v. Board, 96 U.S. 97; Winona Land Co. v. Minn, 159 U.S. 537; Seminary v. Tacoma, 62 P. 444; King v. Portland, 63 P. 4; Cunningham v. Denver, 23 Colo. 18; People v. Turner, 40 N.E. 400; Shalley v. Railroad, 64 Conn. 381; Oskamp v. Lewis, 103 F. 906; Quill v. Indianapolis, 124 Ind. 292; Villiage v. Norton, 65 N.W. 935.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This is an appeal from the judgment of the circuit court of Jackson county granting a new trial after finding a judgment for the defendants. The suit was to establish and enforce the lien of a special taxbill issued by Kansas City for the paving of Nineteenth street, a business street in said city, with American bituminous rock mixed with asphalt, from Main street to Tracy avenue. The taxbill was issued on what is known in said city, under its special charter, as the installment plan, and was payable in four equal installments of one hundred, sixty-three dollars and sixty-seven and one-half cents each, the last installment falling due on May 31, 1901. The bills bear interest at the rate of seven per cent per annum, and provided that if any installment or interest thereon was not paid when due, then all the remaining installments should become due and collectible with interest thereon at the rate of ten per cent per annum from the date of the issue of said taxbill. Said taxbill was issued August 20, 1897. The petition is in the usual form, alleging the incorporation of the Gilson Asphaltum Company under the laws of this State, and incorporation of the plaintiff under the laws of this State, and alleged that the work for which said bill was issued was done under an ordinance of Kansas City numbered 7535, and that all of said installments were due and unpaid, and that there was due from the defendants six hundred and fifty-four dollars and seventy cents, which was chargeable against lot one, block four Vineyard's Addition to Kansas City, and prayed judgment for the said sum and for its enforcement against said property and for costs.

The answer admitted that Kansas City was a municipal corporation duly created under the laws of this State, and admitted their ownership of the said real estate, but denied each and every other allegation in the said petition contained. And then for special defense alleged that the said ordinance under which said work was done was null and void, because the materials for the said paving designated in said ordinance were specifically required to be furnished by certain companies or corporations or from certain localities, thereby preventing full and fair competition. And because no time for the completion of said work was prescribed in said ordinance, and no plans or specifications for said work were in existence at or before the passage and approval of the said ordinance. The answer also alleged that the work was based on an alleged recommendation by the Board of Public Works of said city to the Common Council on August 11, 1896, and that said recommendation was illegal and void because a previous and different recommendation had been made by said board July 3, 1896, and never rescinded, and because the said recommendation designated materials which were required to be furnished by certain companies or corporations or from certain localities, thereby preventing full and fair competition. It is further alleged in the answer that after the passage and publication of said ordinance, which allowed resident property-owners to select the materials out of which said pavement was to be constructed, two petitions of resident property-owners were filed with said Board of Public Works on September 22, 1896, and that said petitions were both rejected by the said board, because neither petition represented a majority of the resident property-owners on said street, and thereupon the said board selected American bituminous rock on concrete to be laid according to "Detail H" of asphalt pavement, approved by said board August 11, 1896, and on file in the office of said board as the material with which said street should be paved under said ordinance, and that such selection by said board was null and void because the resident owners of the city...