City of Independence To the Use of the Parker-Washington Company v. Knoepker

• Decision Date: 07 December 1908
• Citation: 114 S.W. 1129,134 Mo.App. 601
• Parties: CITY OF INDEPENDENCE to the use of THE PARKER-WASHINGTON COMPANY, etc., Appellants, v. JOHN H. KNOEPKER et al., Respondents
• Court: Kansas Court of Appeals

114 S.W. 1129

134 Mo.App. 601

CITY OF INDEPENDENCE to the use of THE PARKER-WASHINGTON COMPANY, etc., Appellants, v. JOHN H. KNOEPKER et al., Respondents

Court of Appeals of Missouri, Kansas City

December 7, 1908

Appeal from Jackson Circuit Court.--Hon. J. V. C. Karnes, Special Judge.

Judgment affirmed.

Ball & Ryland for appellants.

(1) The original ordinance adopted the specifications on file with the city clerk and thereby they became a part of it and the ordinance should be construed as if they were embodied in it. Galbreath v. Newton, 30 Mo.App. 380; Dickey v Holmes, 109 Mo.App. 721; Paving Co. v. Ullman, 137 Mo. 543. (2) So construing the ordinance, the bills would be valid if the work were completed within a reasonable time even though no extension of time had been made. Heman v Gilliam, 171 Mo. 258; Schibel v. Merrill, 185 Mo. 534; Allen v. Labsap, 188 Mo. 692. (3) The fact, if it was a fact, that the part of the specifications denominated "general" were not on file when the ordinance was passed could not operate to defeat the bills because no such defense was pleaded. Vieths v. Property Co., 64 Mo.App. 207; Carthage ex rel. v. Badgley, 73 Mo.App. 123; Construction Co. v. Hutchison, 100 Mo.App. 294; Bridewell v. Cockrell, 122 Mo.App. 196 (202).

James M. Callahan and Flournoy & Flournoy for respondents.

(1) The ordinance by itself is of course, insufficient, in that it does not describe the kind of paving to be made, but it attempts to make itself sufficient by reference to certain specifications which are shown in the abstract. Those specifications were incomplete as to the kind and quality of the wearing surface of the pavement, and they left it to bidders to say what kind of wearing surface should be made. The successful bidder supplemented and completed the specifications before he executed the contract by attaching to the specifications the formula shown in abstract. The formula attached to the specifications was not part of the ordinance as it was not in existence at the date of the ordinance, hence the ordinance did not properly describe the pavement to be made and was void. Dickey v. Holmes, 109 Mo.App. 721; Galbreath v. Newton, 30 Mo.App. 380; Rich Hill v. Donovan, 82 Mo.App. 386; Boonville v. Stephens, 95 S.W. 314.

OPINION

ELLISON, J.

The defendants are property-owners in Independence, a city of the third class. The city undertook to pave a part of one of its streets on which defendants' property abutted. The paving was done and taxbills issued against abutting property, which included that in suit. The trial court rendered judgment for the defendants.

There are several reasons advanced by defendants why the bills are invalid. It will not be necessary to notice more than one, and that is the claim that the work and material for the paving was not provided for by an ordinance, and, in consequence, the contract let was not the result of competition. It appears that an ordinance was passed for the paving, to be done "with asphalt on concrete foundation in accordance with the specifications prepared by the city engineer for this work, on file in the office of the city clerk." No objection is taken to the fact that the ordinance did not embody on its face the character, dimensions and material of the work. It is conceded that an ordinance may adopt specifications as a part of itself, which are at the time of the adoption of the ordinance on file in some place designated in the ordinance. [Galbreath v. Newton, 30 Mo.App. 380.] In that manner they become a part of the ordinance. But the complaint here is that the specifications on file with the city clerk did not designate the main and principal part of the paving, nor its mode of construction; that they, on their face, left that to future specifications to be submitted by the bidders in the shape of what is called a "formula." The specifications on file with the clerk and which became a part of the ordinance, prescribed how the concrete should be made and of what particular materials and the proportions thereof. They then specified of what the binder course should be composed and in what proportions. After thus providing for the foundation of the pavement, the specifications proceeded to specify that:

"(4) If the American Bituminous Rock Asphalt is used, the binder course to be omitted and a sufficient amount of the hydraulic concrete used to bring the surface of the concrete two (2) inches below and parallel with the finished surface of the pavement."

"(5) Upon the foundation thus prepared, there shall be placed an asphalt wearing surface not less than two (2) inches in thickness when thoroughly compressed, which shall be manufactured and made strictly in accordance with the formula accompanying the proposal."

This was followed by the specification that this two inch asphaltum paving surface "shall be laid substantially according to the formula accompanying the proposal, which shall in each case be treated as a part of the specifications and contract."

The formula for the pavement, thus made a part of the specifications, was made up of the following specifications:

"Upon this concrete base will be laid the wearing surface or pavement proper, the matrix or binding material of which is a cement prepared with Trinidad asphaltum of the best quality obtained from the island of Trinidad, and heavy petroleum oil, unmixed with any of the products of coal tar.

"The heavy petroleum oil; the residuum obtained by distillation of petroleum--will be free from water, light oils, and other objectionable impurities, and specific gravity 18 degrees to 23 degrees Beaume, and will bear a fire test of 350 degrees Fahr.

"The Trinidad Asphaltum will be carefully refined and brought to a uniform standard of purity and gravity.

"The refined asphalt and petroleum residuum will be mixed in the following ratio by weight: The refined asphalt, 100 parts heavy petroleum oil, 13 parts. But this ratio may be varied according to...