City of Maryville v. Lippman

• Decision Date: 21 November 1910
• Citation: 132 S.W. 47,151 Mo. App. 447
• Parties: CITY OF MARYVILLE, to Use of CITIZENS' NAT. BANK OF DES MOINES, IOWA, v. LIPPMAN et al.
• Court: Missouri Court of Appeals

132 S.W. 47

151 Mo. App. 447

CITY OF MARYVILLE, to Use of CITIZENS' NAT. BANK OF DES MOINES, IOWA, v. LIPPMAN et al.

Kansas City Court of Appeals. Missouri.

November 21, 1910.

MUNICIPAL CORPORATIONS (§ 445) — PUBLIC IMPROVEMENTS—CONTRACTS—SUBMISSION TO COMPETITION—COMPLIANCE WITH STATUTE.

After the advertisement for bids for paving a street with brick of specified minimum size was made, but before any bids were accepted, on the day preceding the letting of the contract, the specifications for the contracts were changed by reducing the minimum size of the brick and the contract then awarded on the new basis. The other bidders than the successful one had no notice of this change. Certain parts of the work were not done according to the contract and the board of aldermen orally released the contractor from compliance. Held, that an assessment based on that work and contract was void, being in violation of Rev. St. 1899, § 5989 (Ann. St. 1906, p. 3024), requiring contracts for street improvements to be let to the lowest and best bidder upon plans and specifications furnished, etc., and with not less than one week's advertisement.

Appeal from Circuit Court, Nodaway County; J. W. Peery, Special Judge.

Action by the City of Maryville, to the Use of the Citizens' National Bank of Des Moines, Iowa, against Adolph Lippman and George Ingerson. From a judgment for defendants, plaintiff appeals. Affirmed.

Anthony & Ford, for appellant. Cook, Cummins & Dawson, for respondents.

JOHNSON, J.

This is a suit on a special tax bill issued by Maryville, a city of the fourth class, in payment of the cost of grading, paving, guttering, and curbing one of the public streets of that city. The answer pleaded several defenses, only one of which we find it necessary to consider. A jury was waived, and the court after hearing the evidence rendered judgment for defendant. Plaintiff appealed.

It appears from the briefs that the court found against the validity of the tax bills, to which the one in suit belongs, on three grounds. We find the judgment should be sustained on one of these grounds, and, passing to the others, address our discussion to that one only.

The ordinance providing for the improvement, as well as the plans and specifications on file, provided that the paving should be of vitrified brick and that "the brick shall be of best quality of re-pressed, vitrified paving brick of the usual dimensions, not less than 2¼×4×8 inches and not more than 3½×4×8 inches." An advertisement for bids was made as provided in section 5989, Rev. St. 1899 (Ann. St. 1906, p. 3024; section 9411, Rev. St. 1909), and after its completion, and on the day preceding the letting of the contract, the board of aldermen amended the ordinance changing the minimum dimensions of the brick from 2¼×4×8 inches to 2¼×3¾×7¾ inches. It is admitted that after the change in the ordinance relative to bricks no advertisement of any kind was made or had for bids on the work. The contract for the work gave the dimensions of the brick as specified in the amendment.

Referring to the curbing, the original ordinance provided: "All stone curbs shall be joined with iron dowel pins inserted between the stones four inches from the top. The dowel pins are to be formed of straight pieces of half-inch iron, cut into four-inch lengths, and the holes in the stone shall be of such size that the dowel pins will fit closely." It is admitted that "during the progress of the work and after entering into the alleged contract the board of aldermen orally released the Likes Improvement Company (the contractor) from performing the portion of the work just referred to (i. e., putting in dowel pins) without any ordinance, resolution, or any other record."

The curbstones were set without being doweled together.

The statute provides (section 5989) that contracts for street improvements "shall be let to the lowest and best bidder upon plans and specifications filed therefor by the city engineer or other officer designated by the board of aldermen, with the city clerk, not less than one week's advertisement for bids thereupon being made in some newspaper published in the city." The statute must receive a construction that will give effect to its obvious purpose, which is that public work of the character under consideration must be offered to competitive bidding, and that all who may wish to bid...