Glennon v. Gates

• Decision Date: 29 March 1909
• Citation: 118 S.W. 98,136 Mo. App. 421
• Parties: GLENNON v. GATES.
• Court: Missouri Court of Appeals

118 S.W. 98

136 Mo. App. 421

GLENNON v. GATES.

Kansas City Court of Appeals. Missouri.

March 29, 1909.

MUNICIPAL CORPORATIONS (§ 330)—STREET PAVING—SELECTION OF MATERIALS.

Where there are several kinds of vitrified bricks equally well suited to use for paving, the selection by the board of public works of the bricks of a particular manufacturer, thereby cutting off all opportunities for the manufacturer of other kinds of vitrified bricks to submit bids, as provided by the city charter, is illegal.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by James G. Glennon against Jemuel C. Gates. From a judgment for defendant, plaintiff appeals. Affirmed.

Johnson & Lucas, for appellant. Henry N. Ess, for respondent.

ELLISON, J.

This is an action to enforce a special tax bill as a lien against defendant's property. The result of the trial was to declare the bill to be void, and plaintiff has brought the case here.

The bill was issued for street paving in Kansas City, Mo. The charter of that city makes provision for the recommendation by the board of public works of several kinds of pavement to be used in paving, which may be ordered by the proper authority of the city. It further provides that the majority of property owners may select from this recommendation the particular kind of paving they desire; but, if the property owners fail to make the selection, then the board of public works shall select and designate the kind. In this case the board recommended the following: "Vitrified brick as manufactured by the Kansas City Vitrified Brick Company, the Diamond Brick Company, the Pittsburg (Kan.) Vitrified Brick Company, or any other vitrified brick equally as good as those named." But the property owners failed to exercise their choice, and the board thereupon made this order: "The board of public works selects Pittsburg (Kan.) vitrified paving brick as the material with which to pave the within-named alley, and fixes the price not to exceed $1.70 per square yard."

The case was tried on an agreed statement of facts, wherein it was stated that: "At the time the written recommendation made by the board of public works to the common council of Kansas City to have this alley paved as a business alley, and at the time of the passage and approval of the ordinance for paving this alley copied herein, and at the time of the making of the contract pursuant to which the tax bill sued on was issued, vitrified brick as manufactured by the Diamond Brick & Tile Company, the Kansas City Vitrified Brick Company, and Pittsburg (Kan.) Vitrified Brick Company were in use in Kansas City as paving brick, and they all complied substantially in every respect with the details in brick pavements as copied in this statement, and there were other vitrified brick which complied with substantially and were in substantial accordance with all the specifications and details set out in this statement." And it was further stated on part of plaintiff that: "No person, firm, or corporation, during the year 1901, in Pittsburg, Kan., manufactured and sold...