City of Independence v. Nagle

• Citation: 114 S.W. 1129,134 Mo. App. 601
• Parties: CITY OF INDEPENDENCE v. NAGLE et al.
• Decision Date: 07 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 1129

134 Mo. App. 601

CITY OF INDEPENDENCE v. NAGLE et al.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

Rehearing Denied January 11, 1909.

1. MUNICIPAL CORPORATIONS (§ 304)—ORDINANCE FOR STREET IMPROVEMENT—ADOPTION OF SPECIFICATIONS.

An ordinance for a street improvement may adopt specifications as a part of itself, which are at the time of its adoption on file in some place designated therein.

2. MUNICIPAL CORPORATIONS (§ 330)—ORDINANCE FOR STREET IMPROVEMENT—ADOPTING OF SPECIFICATIONS—CONTRACTS — COMPETITIVE BIDDING.

Where specifications on file for paving adopted by the ordinance providing therefor refer to the formula, to accompany the bid, for additional specifications as to the asphalt surface, such additional specifications are not thereby adopted as a part of the original specifications, though the original specifications on file provide that the formula shall be so treated, and hence the work and material for the paving are not provided for by the ordinance, and the contract let is not the result of competition, as required to render valid tax bills issued against abutting property.

3. MUNICIPAL CORPORATIONS (§ 445)—STREET IMPROVEMENT—NECESSITY OF COMPETITIVE BIDDING—LETTING CONTRACT.

That no harm was done by letting a contract for a street improvement without competitive bidding on advertised specifications is not a sufficient answer to the claim of abutting owners that the tax bills for the improvement were void on that account.

Appeal from Circuit Court, Jackson County; J. V. C. Karnes, Special Judge.

Action by the City of Independence, to the use, etc., against Charles A. Nagle and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ball & Ryland, for appellant. Flournoy & Flournoy and Jas. M. Callahan, for respondents.

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 tax bills 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...