Barber Asphalt Paving Company v. Field
| Decision Date | 25 April 1905 |
| Citation | 86 S.W. 860,188 Mo. 182 |
| Parties | BARBER ASPHALT PAVING COMPANY v. FIELD et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
R. H Field for appellants.
(1) The designation of material by the board of public works extended to the residents owning a majority in front feet of the abutting lands, the right and opportunity to select (1) "Trinidad Lake asphalt;" (2) "Bermudez California, Trinidad or any other asphalt equally as good as those designated;" i. e., to select the asphalt by place of its existence or origin, and not otherwise. It did not in form or in effect extend to such owners a right or opportunity to select asphalt as a kind of material for the pavement. This designation of asphalt did not follow strictly, nor at all, the Kansas City charter provision authorizing the board of public works to designate "kinds of materials," for paving "a business street," and was therefore ultra vires and void. Charter, last proviso of sec. 2, art. 9; City to use v Eddy, 123 Mo. 546; Kansas City v. Swope, 79 Mo. 448; Ruggles v. Collier, 43 Mo. 376; St. Louis v. Clemens, 43 Mo. 404; City of Wellston v. Morgan, 59 Ohio St. 157. (2) The third count of the answer adopts the allegations of the first count therein. Besides what is noted in preceding point, the first count of the answer alleges the specifications of detail 3 of asphalt pavement, according to which the pavement was required to be made; this detail provides for "a Trinidad Lake Asphalt" surface, one and one-half inches thick, upon a bituminous concrete binder course one and one-half inches thick, to be laid on a concrete foundation, etc. These allegations, besides showing a violation of the provision in section 2 of article 9, also show a violation of section 12 of article 17, of the Kansas City charter, requiring contracts for such work to be let to the lowest and best bidder. Schoenberg v. Field, 95 Mo.App. 250; Fishburn v. Chicago, 171 Ill. 338; Rudersheimer v. Mayor, 52 La. Ann. 2091; Inge v. Board of Public Works, 135 Ala. 187; People ex rel. v. Gleason, 121 N.Y. 635; Hardware Co. v. Erb, 54 Ark. 650. (3) The fourth count of the answer adopts the allegations of the first and third counts thereof. The other allegations of the fourth count of the answer are, in effect, that the designation, selection and specification of Trinidad Lake Asphalt by the Kansas City officials and resident owners of abutting lands respectively for the street pavement in question, was made for the sole purpose of excluding any competition for the work and to secure the contract therefor to the respondent paving company. Such action was ultra vires and fraudulent, and therefore void. Atlanta v. Stein, 111 Ga. 789; Boon v. Utica, 5 Miscl. (N.Y.) 403; Adams v. Brennan, 177 Ill. 194; Tide Water Co. v. Coster, 18 N.J.Eq. 524; Elkhart County Lodge v. Cary, 98 Ind. 242; Brown v. Bank, 137 Ind. 668; Brooks v. Cooper, 50 N.J.Eq. 769; Kirkwood v. Meramec Highlands, 94 Mo.App. 637; Railroad v. Railroad, 171 U.S. 48; Central Transportation Co. v. Pullman Co., 139 U.S. 48; Freeport Water Co. v. Freeport City, 180 U.S. 587; Inge v. Board of Public Works, supra; People ex rel. v. Gleason, supra; State v. Neb. Distilling Co., 29 Neb. 700; Bailey v. Master Plumbers, 103 Tenn. 99; Dillon, Munic. Corp. (4 Ed.), sec. 322; Cooley, Const. Lim. (6 Ed.), p. 125, n. 3, and pp. 483-4; Gibbs v. Smith, 115 Mass. 592. (4) The allegations of the fourth count of the answer state acts of legal and actual fraud upon the part of both the Kansas City officials and the respondent Paving Company, sufficient to defeat the municipal proceedings in question, and the court erred in not so holding. Trist v. Child, 21 Wall. 451; Critchfield v. Berumdez Paving Co., 174 Ill. 466; Hayward v. Nordburg Mfg. Co., 85 F. 4, 29 U.S. Ct. App. 446; Brooks v. Cooper, 50 N.J.Eq. 772; Boon v. Utica, 5 Miscl. (N.Y.) 403; Veazey v. Allen, 173 N.Y. 359; McMullen v. Hoffman, 174 U.S. 648; Mechem on Agency, sec. 25; Railroad & Tel. Cases v. Board, 85 F. 320; Brown v. Bank, 137 Ind. 668. In Missouri a municipal act, even a by-law, is void for the fraud of city officials therein, or for a fraud practiced upon them. Morse v. Westport, 136 Mo. 276; Barber Asphalt Paving Co. v. French, 158 Mo. 547; San Antonio v. State, 54 S.W. 289; Oakland v. Carpenter, 13 Cal. 540; Dillon, Munic. Corp. (4 Ed.), secs. 311, 908, 914; State ex rel. v. Cincinnati Gas Light and C. Co., 18 Ohio St. 301. (5) And equally so for any fraud on the law, as for an intended fraud. Hill v. Swingley, 159 Mo. 50; Boon v. Utica, 5 Miscl. (N.Y.) 403; Hersey v. Board, etc., 37 Wis. 80; Railroad & Tel. Cases v. Board, 85 F. 320; Elkhart County Lodge v. Cary, 98 Ind. 242; Brown v. Bank, 137 Ind. 668. A fraud on the law is also equally and always a subject of redress and relief. Schumacker's Estate v. Reel, 61 Mo. 602; Alexander v. Reilfe, 74 Mo. 518. The sum of these allegations is, that in the designation and specification of Trinidad Lake Asphalt for this street pavement, we did not have any exercise of judgment of the Kansas City officials, hence have had no authorized municipal action in such designation and specification. Birdsell v. Clark, 73 N.Y. 73; Boon v. City of Utica, 5 Miscl. (N.Y.) 403; Ricketson v. City, 105 Wis. 605; Schoenberg v. Field, 95 Mo.App. 249; Russell v. St. Louis, 116 Mo. 248; City of Rich Hill v. Donnan, 82 Mo.App. 386; Brooks v. Cooper, 50 N.J.Eq. 761; State v. City of Patterson, 34 N.J.L. 163; Railroad & Tel. Cases v. Board, 85 F. 320; Woodstock Iron Co. v. Extension Co., 129 U.S. 658. And such fictitious and unauthorized action on the part of the Kansas City officials deprived appellants of their property without due process of law, and violated section 1 of the fourteenth amendment to Constitution of the United States. Chicago Union Traction Co. v. State Board, 114 F. 565; Railroad & Tel. Cases v. Board, supra. The court erred in holding that the fourth count contained no defense to the taxbills sued on; also in refusing to allow appellants to prove the facts contained in the allegations noted in this point. (6) The seventh count in the answer states that the acts aforesaid of the board of public works, the common council and mayor of said city, violate the commerce clause of section 1 of article 8 of the Constitution of the United States. The specification of Trinidad Lake Asphalt for the pavement was a municipal regulation, which, ex vi termini, excluded from use and from the market for use in the pavement the like asphalt of all other places. Fishburn v. Chicago, 171 Ill. 338; Diamond v. City of Mankato, 89 Minn. 48; Rudersheimer v. Mayor, 52 La. Ann. 2089. This municipal regulation was, therefore, in restraint of trade with the other foreign nations and with our own States having the like asphalt, and a violation of the commerce clause of section 1 of article 8 of the Constitution of the United States. State ex rel. v. Coler, 166 N.Y. 144; Minnesota v. Barber, 136 U.S. 313; Brimmer v. Rebman, 138 U.S. 78; Voight v. Wright, 141 U.S. 62; Scott v. Donald, 165 U.S. 94; Collins v. New Hampshire, 171 U.S. 30; Higgins v. Lime, 130 Mass. 1; People v. Hawkins, 157 N.Y. 1; Arnold v. Yanders, 56 Ohio St. 417.
Scarritt, Griffith & Jones for respondent.
(1) The municipal authorities of Kansas City acting conformable to the charter may designate the material with which a street shall be paved, although that material be a patented article or a natural product which is controlled by one individual, notwithstanding the charter requires contracts for such work to be let to the lowest and best bidder. Field v. Barber Asphalt Pav. Co., 194 U.S. 618; Swift v. St. Louis, 79 S.W. 172. (2) The general expressions and insinuations relative to lobbying contained in the fourth count of defendants' answer are not sufficiently definite to constitute a cause of action in fraud or an affirmative defense on which issue could be joined. Nagle v. Railroad, 167 Mo. 89; Nichols v. Stevens, 123 Mo. 117. (3) The allegations of the answer do not show an agreement or conspiracy violative of the Sherman Act, or of the commerce clause of the Federal Constitution. Field v. Barber Asphalt Pav. Co., 194 U.S. 618; U. S. v. Knight Co., 156 U.S. 1; Hopkins v. U.S. 171 U.S. 578; Pipe & S. Co. v. U.S. 175 U.S. 211; Anderson v. United States, 171 U.S. 604; United States v. Joint Traffic Assn., 171 U.S. 505; Whitwell v. Tobacco Co., 125 F. 545; Phillips v. Cement Co., 125 F. 593.
OPINION
In Banc.
This is an action begun in the circuit court of Jackson county, Missouri, to enforce the collection of a special taxbill 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 taxbill 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 taxbill sued on, did not allege facts sufficient to constitute a defense to the taxbill. 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:
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