151 S.W. 759 (Mo.App. 1912), Custer v. City of Springfield
| Citation | 167 Mo.App. 354,151 S.W. 759 |
| Docket Number | . |
| Date | 02 December 1912 |
| Parties | SALLIE R. CUSTER et al., Appellants, v. CITY OF SPRINGFIELD et al., Respondents |
| Court | Missouri Court of Appeals |
Page 759
Appeal from Greene Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
(1) Lowest and best bidder required and protects public against favoritism and corruption. R. S. 1909, Sec. 9255; Schoenberg v. Field, 95 Mo.App. 241; Curtice v. Schmidt, 202 Mo. 703; Paving Co. v. McLord, 145 Mo.App. 145. (2) An ordinance requiring material to be purchased of some designated person, or which was manufactured by some designated person, was a violation of such salutary provision and was void. Paving Co. v. McLord, 145 Mo.App. 144; Schoenberg v. Field, 95 Mo.App. 241; Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80. (3) Petition alleges other material of same general character and value as Hassam was used in Spring-field. The court says in Swift v. City, 180 Mo. 80: "We readily concede that if it had appeared that if more than one firm made coal tar cement of uniform quality, then it would have been the bounden duty of the board to have fixed a standard and invited competition as was ruled in Schoenberg v. Field, 95 Mo.App. 241. In that case it was properly ruled that when the board of public improvement arbitrarily selected vitrified brick of certain make, when the board's own records disclosed that other manufacturers made brick of the approved standard, it was a denial of competition and void." Construction Co. v. Coal Co., 205 Mo. 49; Paving Co. v. McLord, 145 Mo.App. 147. (4) The defendants invoke the support of the cases of Barber Asphalt v. Hunt, 100 Mo. 22; and Verdin v. City of St. Louis, 131 Mo. 91. The Hunt & Verdin cases merely attempt to hold that the patented material was not to be excluded because patented, and not that because the material is patented it excludes all other materials. The court in Curtice v. Schmidt, 202 Mo. 703, 725, says: "If we understand that doctrine (referring to the Hunt, Verdin and Swift cases), it is to the effect that, notwithstanding the city is required to have competition in the letting of contracts, yet if there is a patented article, or an article not patented, but in the hands of one person or company, which article is necessary for the public improvement, and there are no other persons having the same general character of material, which could be brought into competition, then the municipality is not forced to use other clearly inferior material on account of the requirement for competitive bidding." "The designation of material in the ordinance, as well as the selection made by the board of public works, should have been couched in such language as would secure unhampered and unrestricted competitive bidding." Curtice v. Schmidt, 202 Mo. 726.
(1) In the cities of the third class, the power to select and designate the kind of paving for a particular street, lies, in the first instance, with the city council and is to be exercised by resolution. Secs. 9254-9255, R. S. 1909; Amended Laws 1911, pp. 337, et seq.; Field v. Paving Co., 24 S.Ct. 787. (2) This power falls in the legislative class and is not subject to control by the courts. Field v. Paving Co., 24 S.Ct. 787; McMaster v. Waynesboro, 50 S.E. 123; Kansas City v. Trieb, 76 Mo.App. 478; Paving Co. v. French, 158 Mo. 534; Heman v. Shulte, 166 Mo. 409. (3) But it is subject to veto by direct legislation of the resident interested property owners, by way of remonstrance. Sec. 9255, R. S. 1909; Laws 1911, p. 340; Sedalia v. Montgomery, 109 Mo.App. 197. (4) The selection of a patented pavement is within the legitimate exercise of the right of the council to initiate street improvements by resolution. Sec. 9255, R. S. 1909; Amended Laws, 1911, p. 340; Paving Co. v. Hunt, 100 Mo. 22; Verdin v. St. Louis, 131 Mo. 26; Swift v. St. Louis, 180 Mo. 80; Allen v. Labsap, 188 Mo. 692; Paving Co. v. Field, 188 Mo. 82; Taylor v. Schroeder, 130 Mo.App. 483. (5) There is a distinction to be drawn between the selection of a patented pavement, as in this case, and the designating of a paving material manufactured by but one company, to the exclusion of the same material manufactured by other companies. Schoenberg v. Field, 95 Mo.App. 241; Virden v. St. Louis, 131 Mo. 26; Paving Co. v. Hunt, 100 Mo. 22. (6) In the one case the monopoly is created by the exercise of the sovereign power, and is lawful; in the other it is created by the act of the city council, and is unlawful, because no such power is delegated to the city in its charter. Glennon v. Gates, 136 Mo.App. 424. (7) While it is the general rule that under the law requiring competitive bidding, one material cannot be selected to the exclusion of others equally as good, still this rule is subject to two exceptions in favor of (1) patented articles and (2) articles held in monopoly. The case at bar falls within the first exception. Paving Co. v. McLord, 145 Mo.App. 146.
OPINION
[167 Mo.App. 358]
--This is an appeal from a judgment of the circuit court of Greene county, sustaining a demurrer to the plaintiffs' petition. The suit is one in equity against the city of Springfield, James H. Langston, city clerk of said city, and Harry G. Horton, city engineer. The plaintiffs are the owners of real estate on Center street in said city, and seek to enjoin the defendants from entering into any contract for the construction
Page 760
of a pavement on said street, and to have a certain ordinance authorizing the paving adjudged null and void.
On the 17th day of October, 1911, the city council passed an order directing the city engineer to prepare and file specifications for the construction of "Hassam pavement, patented (class "B"), on Center street from Benton avenue to the National boulevard." Having adopted the preliminary statutory resolution and no remonstrance having been filed, the council, on the 2d day of January, 1912, passed an ordinance for the improvement. Section 1 of that ordinance reads: "That there is hereby ordered constructed on Center street from the center line of Benton boulevard to the west curb line of the National boulevard Hassam pavement, patented (class "B").
The petition alleges: "Plaintiffs state that by the terms of said ordinance Hassam pavement, patented (class "B"), is designated as the pavement required [167 Mo.App. 359] to be constructed on said Center street and plaintiffs say that the method of application of the material in the construction of said pavement is patented and the patentee, or his...
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