Swift v. City of St. Louis

• Decision Date: 24 February 1904
• Citation: 79 S.W. 172,180 Mo. 80
• Parties: SWIFT v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

79 S.W. 172

180 Mo. 80

SWIFT v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

February 24, 1904.

MUNICIPAL CORPORATIONS—STREET IMPROVEMENTS — PAVING — SPECIFICATIONS — MATERIALS OF SPECIAL MANUFACTURER—ORDINANCES—DETAILS—CITY OFFICIALS—DISCRETION.

1. Where, at the time a street was proposed to be paved with bituminous macadam, there was only one manufacturer who had succeeded in making a uniform coal-tar cement, which was available and necessary to be used to bind the macadam, an ordinance specifying that the cement to be used should be that made by such manufacturer was not void on the ground that it thereby prevented competition and denied taxpayers the right to have the work done by the lowest bidder, as provided by the city charter.

2. Where all the contractors for the improvement of a street with bituminous macadam understood that certain brands referred to in the specifications were brands of coal-tar cement to be used in connection with the pavement, the specifications were not defective in that they did not call for cement, but simply specified "Warren's Puritan Brand."

3. An ordinance for street improvement was not void by reason of the fact that it left certain details to the discretion of the proper city officials, where such details amounted only to an infinitesimal proportion of the work.

Fox, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Bill by William H. Swift against the city of St. Louis and others. From a decree dissolving a temporary injunction and dismissing the bill, plaintiff appeals. Affirmed.

Judson & Green and Grover & Grover, for appellant. Chas. W. Bates, Elliott, Elliott & Littleton, Morton Jourdan, and Virgil Conkling, for respondents.

GANTT, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis dissolving a temporary injunction which had been obtained in this cause and dismissing the bill. The suit was one in equity against the city and the board of public improvements to enjoin the said board from making a contract for the pavement of West Pine Boulevard with "bituminous macadam" under City Ordinance No. 20,822. This suit is based upon the alleged invalidity of said ordinance providing for said pavement. The plaintiff asserts that the ordinance violates the charter provisions concerning the duties of the board of public improvements in recommending ordinances for street improvements and prescribing the legal requisites for such ordinances, in that it prevented competition for the construction of said pavement, and thereby denied the taxpayers the right to have it done by the lowest bidder. The charter provisions are pleaded in full. Article 6, § 14, ordains that "no ordinance for the construction or reconstruction of any street, avenue, boulevard, alley, or public highway of the city, shall be passed" unless recommended by the board of public improvements as thereinafter provided. The board is required to designate a day in which they will-hold a public meeting to consider the improvement of any designated street, avenue, boulevard, alley, or public highway by grading or regrading, by constructing or reconstructing, by paving or repaving the roadway, including crosswalks and intersections, and shall give two weeks' public notice in the papers doing the city printing of the time, place, and matter to be considered, stating in each notice the kind of material and manner of construction proposed to be used for the wearing surface of such improvement, naming more than one kind of material or manner of construction if the board deem it advisable so to do, and also the class of specifications and plan for such work, which specifications and plan shall be approved by the board. It then provides for a remonstrance within 15 days by the owners of the major part of the area of the land made taxable for such improvement, and requires the board to consider such remonstrance, and, if two-thirds of the board concur in approving such improvement, material, or manner remonstrated against, they shall cause an ordinance to be prepared, and report the same, with such remonstrance, to the assembly. If no such remonstrance be filed within 15 days, or such majority of the owners shall petition for such improvement, a majority of the board may approve the same at a regular meeting, and cause such ordinance to be prepared and reported to the assembly. Section 15 provides that "all ordinances so recommended shall specify the character of the work, its extent, the material to be used, the manner and general regulations under which it shall be executed, the fund out of which it shall be paid for and may specify a term of years for which such work shall be maintained by the contractor and shall be endorsed with an estimate of the cost thereof." Section 16 provides that upon the recommendation of any ordinance as aforesaid by the board, when accompanied by a remonstrance, the assembly shall have power by a vote of two-thirds of the members-elect of each house to pass such ordinance, and in all other cases a majority of the members-elect may pass such ordinance. Section 17 requires all ordinances for public work to be recommended by the board of public improvements. Section 27 forbids the assembly to directly contract for public work or improvements contemplated by the charter, or to fix the price or rate therefor; but in all cases, except in cases of emergency work or necessary repairs, the board shall prepare and submit to the assembly ordinances, with an estimate of cost thereof indorsed thereon, authorizing the doing of any proposed work, and under the direction of such ordinances shall advertise for bids in the papers doing the city printing three times, the last publication to be at least 10 days before the day appointed for the opening of the bids, stating the general nature of the work to be done and the time and place when the bids shall be received, and shall let the contract to the lowest responsible bidder. Any other mode of letting out or contracting for work shall be held illegal and void. On the 28th of March, 1902, the board of public improvements considered the improvement of West Pine Boulevard from Spring avenue to King's Highway, and passed an order fixing April 22, 1902, as the day for public hearing upon the petition of interested property holders on the board's motion No. 6,079 for the reconstruction of West Pine Boulevard from Spring avenue to King's Highway, and gave notice that the board on that day would consider the reconstruction —resurfacing—of the above-designated streets with either (1) class A-3 asphalt on a concrete base wherever required, and on a Telford foundation, and new granatoid curb and gutter; or (2) class R-3, natural rock asphalt on concrete foundation, and new granatoid curb and gutter; or (3) class W-3 creosoted wood blocks on concrete foundation, and new granatoid curb and gutter; or (4) class M-3 bituminous macadam on old foundation, and new granatoid curb and gutter. No remonstrance was filed at said meeting, nor within 15 days thereafter, by any property holders, nor within 15 days was any one of the four suggested materials selected by the owners of a majority part of the area of the land made taxable for such improvement. On June 3, 1902, the said board, at a regular meeting, selected bituminous macadam as the material for the reconstruction of said street, and by a resolution approved and recommended to the municipal assembly an ordinance for the reconstruction of West Pine Boulevard between Spring avenue and King's Highway Boulevard, known as "Ordinance No. 20,822," with bituminous macadam. It appears that 92 property owners on this boulevard petitioned for bituminous macadam and 24 for rock asphaltum. Among the specifications of material to be used in the reconstruction of the street it was required that the pavement should be of certain composition prepared by one Warren, and known as "Warren's Puritan Brands," to wit, "Warren's No. 1 Bituminous...