Barber Asphalt Paving Co. v. Field

• Citation: 86 S.W. 860,188 Mo. 182
• Parties: BARBER ASPHALT PAVING CO. v. FIELD et al.
• Decision Date: 30 March 1905
• Court: United States State Supreme Court of Missouri

86 S.W. 860

188 Mo. 182

BARBER ASPHALT PAVING CO. v. FIELD et al.

Supreme Court of Missouri.

March 30, 1905.

CITIES—STREET PAVING — DESIGNATING KINDS OF MATERIAL—FRAUD—PLEADING — CONCLUSION—OBJECTION TO INTRODUCTION OF EVIDENCE — INTERFERENCE WITH INTERSTATE COMMERCE.

1. Under Kansas City Charter, art. 9, § 2, providing for selection by property owners of the material with which a street shall be paved from not less than two kinds of material to be designated by the board of public works, the board may designate a certain kind of asphalt as one of the kinds of material.

2. The answer in an action to enforce a special tax bill for street paving, alleging that M. was employed by plaintiff paving company as its agent and lobbyist to procure paving contracts in the city; that he was a man of large influence in political primaries and conventions, and spent his time and money in the election of members of the council and mayors of the city and in the appointment of members of the board of public works, and was a controlling factor in the acts of such officials—does not state acts constituting fraud.

3. The allegation of an answer that a contract was secured by the undue influence of plaintiff over municipal authorities, is not a statement of a fact, but a mere conclusion.

4. An answer will be held insufficient to plead the defense of fraud no less on objection to introduction of evidence under it than on demurrer to it.

5. The designation by city authorities of a certain kind of asphalt as the material to be used for paving a street, is not a direct interference with interstate commerce, so as to be violative of the federal constitution or anti-trust act.

In Banc.

Appeal from Circuit Court, Jackson County; Jno. W. Henry, Judge.

Action by the Barber Asphalt Paving Company against Annie Field and another. Judgment for plaintiff. Defendants appeal. Affirmed.

This is an action begun in the circuit court of Jackson county, Mo., to enforce the collection of a special tax bill issued by Kansas City in part payment of the contract price of paving Washington street in that city from Ninth street to Tenth street with an asphalt pavement. The plaintiff introduced in evidence the tax bill sued on, and so made its case. The plaintiff thereupon objected to the introduction of any evidence on the part of the defendants on the ground that the answer, which admitted the execution and delivery of the tax bill sued on, did not allege facts sufficient to constitute a defense to the tax bill. This objection was sustained by the court, and its ruling was excepted to by the defendants. The correctness of that ruling presents the sole question now before this court. The answer of defendants consists of seven counts, and, while we deem it unnecessary to reproduce all of them, to fully appreciate this controversy it is essential, at least, to quote the first count in full. It is as follows:

"Defendants for their answer and defenses to the plaintiff's petition and the special tax bills sued on submit the following:

First Count. For their defense they state:

"(1) That Kansas City, Missouri, is, and at all times named in plaintiff's petition was, a municipal corporation organized and existing by virtue of the special charter framed by it for its own government under section 16 of article 9 of the Constitution of the state of Missouri.

"(2) That the special tax bill dated December 20, 1898, sued on and consisting of the four installments thereof copied in plaintiff's petition, was issued to plaintiff in part payment for the paving of Washington street from the north line of Tenth street to the center line of Ninth street in said city, under and pursuant to the proceedings hereinafter recited.

"(3) On June 17, 1898, the board of public works of said city unanimously recommended to the common council of said city that Washington street in said city from the north line of Tenth street to the center line of Ninth street be paved as a business street, and that payment therefor be made in special tax bills; and in said recommendation said board designated materials for said paving from which the resident owners of land fronting on said street pavement were given the right to select, as follows: `Trinidad Lake asphalt on concrete to be laid according to detail "3" of asphalt pavement approved by said board August 11, 1896, and on file in the office of said board. Bermudez, California, Trinidad, or any other asphalt equally as good as those designated, on concrete to be laid according to detail "F" of asphalt pavement approved by said board October 18, 1892, and on file in the office of said board, so modified as to allow the use of one and one-half (1½) inches of wearing surface and one and one-half (1½) inches of binder course. American bituminous rock on concrete to be laid according to detail "I" of asphalt pavement approved by said board August 11, 1896, and on file in the office of said board. Vitrified brick, as manufactured by the Diamond Brick & Tile Company, on concrete, to be laid according to detail "I" of brick pavement approved by said board November 26, 1895, and on file in the office of said board, so modified as to allow the use of the Portland cement grout instead of Murphy grout filler as therein specified. Vitrified brick, as manufactured by the Kansas City Vitrified Brick Company, the Pittsburg Kansas Vitrified Brick Company, or any other vitrified brick equally as good as those designated, on concrete to be laid according to detail "4" of brick pavement approved by said board August 11, 1896, and on file in the office of said board. Granite or sandstone blocks on concrete to be laid according to detail "C" of stone block pavement approved by said board July 19, 1892, and on file in the office of said board.'

"(4) Following said recommendation of the board of public works of Kansas City, Missouri, the common council of said city passed and the mayor of said city on July 23, 1898, approved Ordinance No. 10,074, alleged in plaintiff's petition, and therein ordered the paving of Washington street from the north line of Tenth street to the center line of Ninth street, exclusive of all sidewalks of legal established width and of the spaces legally required to be paved by the street railway company operating street railways upon and across said part of Washington street, as a business street in said city, and that the same be paid for by special tax bills, and setting forth in section 3 thereof the designation of the materials and the manner for doing the work for said street pavement as made by the board of public works in said recommendation of said board, from which designation of materials said ordinance provided that the residents of said city who owned the majority in front feet of the lands fronting on said part of such street were to have the right to select one kind of the materials so specified for said street pavement by petition in writing addressed and delivered to the board of public works, and upon their failure to make such selection within ten days after the Ordinance No. 10,074 had been published for ten days in the newspaper then doing the city printing that then the board of public works of said city were required to designate the material with which said part of said street should be paved.

"(5) It was further provided and required in said ordinance that the contract for the work herein authorized shall guaranty that the same shall be constructed with such materials and in such manner that the same shall endure, without the need of any repairs, for a period of five (5) years from and after its completion and acceptance without further compensation than that provided for in the contract for the first cost of such work, and for which the said special tax bills are issued.

"(6) Said city Ordinance No. 10.074 was published in the Kansas City Journal, the newspaper then doing the city printing, on July 30 and 31 and on August 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, 1898, but none of the `detail' specifications referred to in the designation of materials aforesaid as approved and on file in the office of the board of public works were printed in or with any newspaper publication of said city ordinance.

"(7) The record of proceedings of the board of public works of August 19, 1898, states that a `petition selecting Trinidad Lake asphalt as the material with which Washington street from Ninth street to Tenth street shall be paved as a business street as provided by Ordinance No. 10,074 was filed.' And among the files of said board is a petition marked filed by or with said board August 19, 1898, and which petition purports to be a selection of Trinidad Lake asphalt as the material with which said part of said street at a cost of not to exceed $2.25 per square yard shall be paved, with the following clause, `Maintenance ten 10 years,' also added thereto; and the persons whose names are signed thereto are declared by the certificate of the members of the board of public works indorsed thereon to be owners of a majority in front feet of the lands fronting on Washington street from the north line of Tenth street to the center line of Ninth street owned by residents of said city.

"(8) The record of the proceedings of the board of public works of August 26, 1898, states that `the property owners on said street having by a petition representing a majority of front feet of real estate owned by residents of Kansas City and fronting on said part of said street selected Trinidad Lake asphalt to be laid according to detail "3" of asphalt pavement as the material with which said part of such street shall be paved, the board of public works, in addition to such selection of material by the property owners, hereby select Trinidad Lake asphalt to be laid according to detail "3" of asphalt pavement approved October 27, 1896, as the material with which said part of said street shall be paved; the work to be done...