Curtice v. Schmidt

• Decision Date: 28 March 1907
• Parties: CURTICE v. SCHMIDT et al., Appellants
• Court: Missouri Supreme Court

101 S.W. 61

202 Mo. 703

CURTICE v. SCHMIDT et al., Appellants

Supreme Court of Missouri, First Division

March 28, 1907

Transferred from Kansas City Court of Appeals.

Reversed and judgment here.

N. F Heitman for appellants.

(1) The court erred in refusing to give our declarations of law which fully set forth our theory on monopoly. The facts in the record bring this case squarely within the doctrine of Shoenberg v. Field, 68 S.W. 945, and the lower court erred in refusing to follow and apply said doctrine in this case. In addition to the authorities cited in Shoenberg v Field, we cite the following on monopoly, most of which are found in our brief in the Shoenberg case, to which we again refer: Art. 17, sec. 12, Kansas City Charter; Dillon on Municipal Corp. (4 Ed.), secs. 322, 325, 329 and particularly 362 (also see secs. 694 and 695); City of Atlanta v. Stein, 111 Ga. 789; Adams v. Brennan, 177 Ill. 199; Chicago v. Rumpf, 45 Ill. 90; Town of Crowley v. West, 52 La. Ann. 533; Brooks v. Cooper, 50 N.J.Eq. 761; State ex rel. v. Warden of Prisons, 157 N.Y. 126; Sayre Burro v. Phillips, 148 Pa. St. 482; McQuiddy v. Brannock, 70 Mo.App. 548; Texas Standard Oil Co. v. Adoue, 83 Tex. 650; Baily v. Master Plumber, 103 Tenn. 114; National Surety Co. v. Hydraulic Press Brick Co., 84 P. 1034; State v. Gas Co., 153 Ind. 489; U.S. v. Fuel Co., 105 F. 93; U.S. v. Coal Dealers Assn., 85 F. 252; Gas Co. v. Texas, 22 Tex. Civ. App. 118; Gas Co. v. Texas, 54 S.W. 289; Nester v. Brew. Co., 161 Pa. St. 473; Kiley v. Oppenheimer, 55 Mo. 374; St. Louis Quarry & Con. Co. v. Von Versen, 81 Mo.App. 519; Brady v. Bartlett, 56 Cal. 350. (2) The eight-hour ordinance is void. Seattle v. Smythe, 22 Wash. 327; In re Morgan, 26 Colo. 415; Low v. Printing Co., 41 Neb. 129; Ex parte Kubeck, 85 Cal. 274; Ritchie v. People, 29 L. R. A. 79; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; Fiske v. People, 188 Ill. 266. (3) The court erred in refusing to give defendants' declaration of law relating to the board's ignoring the majority petition selecting Trinidad Lake asphalt. Sec. 2, art. 9, Kansas City Charter; Forbes v. Bradbury, 58 Mo.App. 506; F. B. Co. v. Geist, 37 Mo.App. 509.

Scarritt, Scarritt & Jones for respondent.

(1) No selection of the material with which the street was to be paved was made by the property-owners within the time designated by the charter, art. 9, sec. 2. St. Joseph ex rel. v. Landis, 54 Mo.App. 315; State v. Green, 66 Mo. 631. (2) The work was completed within the time stipulated in the contract. The ordinance pursuant to which this work was done does not fix the time, directly or indirectly, within which the work should be completed. The specifications in the contract wherein the time of completing the work is mentioned are not made a part of that ordinance. It is not essential that the ordinance should state the time within which the work was to be done. Strassheim v. Jerman, 56 Mo. 104; Carlin v. Cavender, 56 Mo. 186; Heman v. Gilliam, 171 Mo. 258; Thorn & Hunkins L. & C. Co. v. Bank, 158 Mo. 272; Heman Const. Co. v. Loevy, 179 Mo. 455. (3) The eight-hour ordinance is constitutional and valid. There is an act of Congress quite similar in terms to the Kansas City ordinance. R. S. U.S., sec. 3738. The law has been held valid and enforced by the Supreme Court of the United States in United States v. Morton, 94 U.S. 400; St. Louis Q. & C. Co. v. Frost, 90 Mo.App. 677. Similar laws have been held constitutional in the following and other cases: State v. Holden, 14 Utah 71; Com. v. Hamilton Mfg. Co., 120 Mass. 383; People v. Warren, 77 Hun 120; Billingsley v. Marshall Co., 5 Kan.App. 435; State v. Atkin (Kan), 67 P. 519; In re Dalton, 61 Kan. 257; Treat v. People, 195 Ill. 196; Hamilton v. People, 194 Ill. 133; Givins v. People, 194 Ill. 150. (4) Pittsburg vitrified brick was a material of a different and superior quality for street paving purpose to the other brick named. The legislative authorities of Kansas City so determined in good faith and upon reasonable grounds and it is not the province of the courts to review that determination. Motz v. Detroit, 16 Mich. 495; Dixon v. Detroit, 86 Mich. 516; Verdin v. St. Louis, 131 Mo. 26; Field v. Pav. Co., 17 F. 925; Pav. Co. v. Field, 188 Mo. 182; Swift v. St. Louis, 180 Mo. 80.

GRAVES, J. Valliant, P. J., and Lamm, J., concur; Woodson, J., not sitting.

OPINION

GRAVES, J.

Action to enforce the collection of an installment taxbill issued by Kansas City of date April 29, 1897. Judgment was for the plaintiff in the circuit court of Jackson county, where trial was had before the court without the intervention of a jury. Defendants appealed to the Kansas City Court of Appeals where the judgment was reversed. Plaintiff, who had injected a constitutional question, by way of instruction in the lower court, and had preserved it throughout in the Court of Appeals, then instituted a mandamus proceeding in this court to compel the Court of Appeals to certify the cause to this court. The mandamus proceeding was heard by this court and the peremptory writ of mandamus awarded. [State ex rel. v. Smith, 177 Mo. 69, 75 S.W. 625.] Thus the case is here by our own opinion. It might be well to add that plaintiff filed his motion to transfer to this court before the case was heard and determined by the Kansas City Court of Appeals, and no laches are chargeable to plaintiff in regard to the proper preservation of his point. In the opinion of Marshall, J., in the mandamus case, supra, the issues of the case at bar are thus stated:

"J M. Curtice sued Frank F. and Mollie Schmidt in the circuit court of Jackson county, upon a certain taxbill, issued April 29, 1897, by virtue of ordinance 7599, authorizing the paving of Nineteenth street between Tracy avenue and Olive street, said taxbill being issued against lot 58 of Elder's addition to Kansas City, and owned by defendants herein.

"The answer of the defendants in that case is, first, a general denial, except as otherwise expressly admitted in the special defenses. Second, an admission that the plaintiff owns the taxbill and defendants own the land. Third, that the taxbill is void because the work was not completed within the time provided by the contract. Fourth, that the taxbill is void because the contract required the contractor to observe the 'eight-hour' ordinance of Kansas City. Fifth, that the taxbill is void because the ordinance authorizing the paving of the street specified six kinds of materials that might be used in paving the street, and that the owners of a majority in front feet of the lands fronting the improvement, selected, as they had a right to do, Trinidad Lake asphalt as the material to be used for such paving, it being one of the six materials mentioned in the ordinance from which a selection was to be made, but that the board of public works disregarded the selection of the property-owners, and designated Pittsburg (Kansas) Vitrified Brick Company's vitrified brick as the material to be used. Sixth, that after the said board wrongfully designated such vitrified brick, specifications for work were prepared, and a contract therefor was let, that the contract was confirmed by ordinance of the city, and 'that such designation, specifications, contract and ordinances are illegal and void, first, because they are contrary to the Kansas City charter requiring said pavement to be let to the lowest and best bidders; second, because they were unauthorized by the Kansas City charter and in violation thereof in excluding from use in the pavement in question all vitrified brick of similar quality, excepting Pittsburg (Kansas) Vitrified Brick Company's vitrified brick. Seventh, that prior to the passage of the ordinance authorizing the improvement, the board of public works made a pretended designation of the materials which the property-owners might select from, but that said designation did not comply with the charter of Kansas City, and that the details specified in the said designation of such materials, all specify some particular, special kind of material in such way as to promote monopoly and prevent competition, and that such designation violates the charter of Kansas City, which requires such work to be let to the lowest and best bidder.'

"The reply is a general denial with a special plea as follows:

"'Further answering plaintiff states that none of the defendants nor any owner of the tract of land described in the petition and in the taxbills therein referred to, nor the owner of any interest therein, did within sixty days from the issue of the said taxbills described in the petition, file with the board of public works of Kansas City, a written statement of each and all objections which he or they had to the validity of such taxbills, the doing of the work mentioned in said taxbills, the furnishing of the materials charged for, the sufficiency of the work or materials therein used, or of any mistake or error in the amount thereof, or a statement of any of the objections of facts alleged in the amended answer, and that by reason of the premises the defendants ought not to be heard to plead, or prove all or any of the facts alleged in their amended answer.'

"When the case came on for trial, the plaintiff introduced a resolution of the board of public works relating to the issuance of special taxbills, and the special taxbill sued on, and then rested.

"The defendants offered in evidence the ordinance authorizing the improvement, and also section 811 of the Revised Ordinances of Kansas City for 1898, regulating the advertising for bids for public work, and requiring the time for the completion of the work to be specified. Thereupon, the following proceedings were had:

"'By Mr. Scarritt: We object to the...