City of Quincy v. Kemper, 14753.
| Decision Date | 21 October 1922 |
| Docket Number | No. 14753.,14753. |
| Citation | 304 Ill. 303,136 N.E. 763 |
| Parties | CITY OF QUINCY v. KEMPER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Proceedings by the City of Quincy to pave a street. From a judgment overruling objections filed by Anna Kemper and others and confirming special assessments against their properties, they appeal.
Affirmed.
Appeal from Circuit Court, Adams County; Fred G. Wolf, Judge.
C. H. Wood, of Quincy, for appellants.
John T. Inghram, Corp. Counsel, of Quincy, for appellee.
This appeal is from a judgment of the circuit court of Adams county overruling certain objections filed by appellants and others and confirming special assessments against their respective properties in a proceeding to pave Spring street, in the city of Quincy. The only objections that were properly raised in the court below that are presented and argued here are: First, the ordinance is void for the reason that it requires the use of a commodity or material which is controlled by one firm, so that competition and bidding are restricted; second, the engineer's estimate does not sufficiently itemize the several elements of the improvement; and, third, the ordinance is void for the reason that it authorizes the issue of bonds, a portion of which is to be paid by general taxation, without being submitted to the voters of the city for their approval, in accordance with the requirements of an act approved June 4, 1909 (Laws 1909, p. 130).
The ordinance provides:
‘The asphaltic cement shall consist of a refined solid natural asphalt softened with a liquid petroleum flux. Refined solid natural asphalt shall be construed to mean any natural mineral bitumen produced by refining a crude natural asphalt which through natural causes in the process of time has been reduced to a consistency harder than ten millimeters penetration, and which, without the addition of any other material, has the following characteristics:
+--------------------------------------------------+
¦‘Water ¦None ¦
+---------------------------+----------------------¦
¦Penetration at 77 degrees ¦ ¦
+---------------------------+----------------------¦
¦Fahrenheit, No. 2 needle, ¦ ¦
+---------------------------+----------------------¦
¦100 grams for five seconds ¦Not over 3 millimeters¦
+---------------------------+----------------------¦
¦Percentage of total bitumen¦ ¦
+---------------------------+----------------------¦
¦soluble in carbon tetra- ¦ ¦
+---------------------------+----------------------¦
¦chloride ¦Not less than 99% ¦
+---------------------------+----------------------¦
¦Residual coke (ash free) ¦Not more than 15% ¦
+---------------------------+----------------------¦
¦Paraffine scale ¦Not more than 0.1% ¦
+---------------------------+----------------------¦
¦Sulphur ¦Not less than 3%' ¦
+--------------------------------------------------+
The objection is that the effect of this provision of the ordinance is to prevent competition among those desiring to contract to perform the work and furnish the material necessary to complete the improvement. It is conceded that this objection does not appear from the face of the ordinance, but appellants produced four witnesses for the purpose of showing that the only firm which could furnish asphalt to meet these requirements was the Barber Asphalt Paving Company. In addition to these witnesses the court heard the testimony of a chemist employed by that company. From the testimony of these five witnesses it appears that natural asphalt of varying grades is produced in many localities in this and other countries of the western hemisphere; that the greatest sources of natural asphalt are Pitch Lake, Trinidad, and Bermudez Lake, Venezuela; that these two lakes are owned by the Barber Asphalt Paving Company; that this company does not own or control any of the many other natural asphalt deposits; that Trinidad land asphalt, which is the overflow from Pitch Lake, springs from the same crater as the lake asphalt and has identically the same chemical characteristics; that none of this land asphalt is controlled by the Barber Company; that there are many natural asphalts which are suitable for paving purposes and which would probably meet the test fixed by the ordinance in question, but they are not produced in such large quantities as the asphalts produced by the Barber Company and are not so well known commercially; that Trinidad land asphalt and Maracaibo asphalt are both known commercially and are sold on the market and can be obtained by buyers for use in construction work, and both are natural asphalts which will meet the test fixed by the ordinance; that there is also a Cuban asphalt, a Mexican asphalt, a Kentucky rock asphalt, and many other natural asphalts which will comply with the specifications in question; that the Barber Asphalt Paving Company is for all practical purposes in control of the natural asphalt market, not becauseit is the only producer of natural asphalt, but because it owns and controls the two sources where a high-grade asphalt can be produced in large quantities, and because it does, in fact, produce several times as much as all its competitors combined.
In Fishburn v. City of Chicago, 171 Ill. 338, 49 N. E. 532,39 L. R. A. 482, 63 Am. St. Rep. 236, we held that an ordinance which specified ‘refined Trinidad asphaltum obtained from Pitch Lake, in the island of Trinidad,’ was void because it created a monopoly in favor of the Barber Asphalt Company, the sole owner of the lake. In the opinion filed in that case it was said, however:
‘If it be the judgment of the city council that the most suitable and best material to be used in any contemplated improvement is the product of some particular mine or quarry, or some substance or compound which is in the control of some particular firm or corporation, the ordinance might be so framed as to make such production, substance, or compound the standard of quality and fitness, and to require that material equal in all respects to it should be employed.’
An ordinance making such a provision was sustained by this court in Gage v. City of Chicago, 207 Ill. 56, 69 N. E. 588, and the...
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People v. Reynolds
...in judging of the weight to be given to the testimony of witnesses when there appears to be a conflict therein. City of Quincy v. Kemper, 304 Ill. 303, 136 N.E. 763. The Court was justified on the record in believing from the testimony of all the witnesses, including the defendant, that he,......
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