Hillig v. City of St. Louis

Decision Date10 July 1935
Citation85 S.W.2d 91,337 Mo. 291
PartiesHugo Hillig and Amanda Hillig, His Wife, Appellants, v. City of St. Louis, a Municipal Corporation, Baxter L. Brown, President of the Board of Public Service of the City of St. Louis, Edward E. Wall, Frank J. McDevitt, Joseph M. Darst and George W. Chadsey, Members of and Constituting Board of Public Service of the City of St. Louis, and Skrainka Construction Company, a Corporation
CourtMissouri Supreme Court

Rehearing Denied July 10, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Reversed and remanded.

Williams Nelson & English for appellants.

(1) Where a city proposes to levy a special tax upon property and proceedings have been commenced leading up to the threatened special tax and such proceedings are invalid, the property owner may resort to equity to remove the cloud on his title or to prevent the threatened cloud from being placed thereon. Verdin v. St. Louis, 131 Mo. 26; Albers v. St. Louis, 289 Mo. 543. (2) The charter of the city of St. Louis requires that all public work of improving streets or alleys must be let by the Board of Public Service of said city after advertisement for bids and the board must let the work by contract to the lowest responsible bidder on plans and specifications finally adopted by said board, and a failure to advertise for bids or a failure to let to the lowest responsible bidder invalidates any special tax bill issued for performance of said work. Charter, City of St. Louis, Art. XXII, Sec. 4; Wegmann Realty Co. v. St. Louis, 47 S.W.2d 770; Thrasher v. Kirksville, 204 S.W. 804. (3) If in letting a contract for public work the awarding board places any restriction or condition on bidders the tendency of which is to increase the price of the improvement such condition or restriction violates a charter provision requiring that the contract shall be let to the lowest responsible bidder. It is obvious that any such restriction tending to increase the price tends to increase the bid because one who is not subject to the restriction and therefore might be a lower bidder is prevented from bidding. Cases authorizing the specification of patented materials or those held in monopoly do so only where the work cannot be performed without such monopolized article. Otherwise such specification is void. Allen v. Labsap, 188 Mo. 692; St. Louis Quarry & Construction Co. v. Von Versen, 81 Mo.App. 519; Glennon v. Gates, 136 Mo.App. 421; Curtice v. Schmidt, 202 Mo. 727; Muff v. Cameron, 134 Mo.App. 611; Schoenberg v. Field, 95 Mo.App. 241; Taylor v. Schroeder, 130 Mo.App. 483; Lewis v. Board of Education, 102 N.W. 756, 139 Mich. 306; Adams v. Brennan, 177 Ill. 194; Marshall & Bruce v. Nashville, 109 Tenn. 495; Chicago v. Hulbert, 205 Ill. 364; Inge v. Board of Public Works of Mobile, 135 Ala. 187, 33 So. 687; City of Atlanta v. Stern, 111 Ga. 789; Paterson Chronicle Co. v. Mayor and Aldermen, City of Paterson, 66 N. J. L. 129; Cleveland v. Construction Co., 67 Ohio St. 197. (4) The conditions and restrictions provided in Ordinance No. 40179 of the city of St. Louis can have no other effect than to arbitrarily increase the cost of public work and to limit the performance of the work to those who pay higher prices and are therefore higher bidders than those who do not comply with its conditions. Furthermore, the conditions and restrictions in said ordinance are void, are indefinite, and to threaten enforcement thereof puts an undue burden upon the taxpayer. Cases under Point 3; Connally v. General Const. Co., 269 U.S. 385, 7 L.Ed. 332; United States v. Cohen Gro. Co., 255 U.S. 92, 65 L.Ed. 522.

Charles M. Hay and E. H. Wayman for City of St. Louis and others.

Philip C. Wise for Skrainka Construction Company.

(1) The only question in this case is whether the wage ordinance attacked is valid as against a taxpayer, and whether plaintiff's petition states a cause of action turns upon this one question. (2) The wage ordinance attacked does not violate Section 4, Article XXII, of the charter of the city of St. Louis, because it does not restrict competition between bidders for public work, but merely prevents competition for jobs between wage earners, who do not come within the purview of the charter provision referred to. (3) A mere increase in the cost of a project in and of itself does not render the ordinance and contract, or the subsequent tax bill, void, unless, in addition to the increase in cost, fraud, corruption and favoritism will be promoted by improper restrictions upon competitive bidding between contractors. Curtice v. Schmidt, 202 Mo. 703; St. Louis Quarry & Construction Co. v. Frost, 90 Mo.App. 677; Youmans v. Everett, 183 Mo.App. 671; St. Louis Quarry & Construction Co. v. Von Versen, 81 Mo.App. 519; Allen v. Labsap, 188 Mo. 692. (4) It is not necessary, under Article XXII, Section 4, of the charter of the city of St. Louis, that an increase in the cost of a project must be avoided at all events; but it is proper to specify articles, apparatus, or commodities held in monopoly if they are superior, even though to do so may result in preventing competition. Swift v. St. Louis, 180 Mo. 95; Wegmann Realty Co. v. St. Louis, 47 S.W.2d 770; Verdin v. St. Louis, 131 Mo. 26; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22. (5) In this case, there is no monopoly, by reason of the preferences provided for in the ordinance; but there is the same tendency as in the cases last cited, supra, to obtain superior work by limiting employment only to those qualified to "perform the work to which the employment relates." Sec. 1, Ordinance 40179. (6) Minimum wage enactments with relation to public works have been upheld in a number of jurisdictions. In re Dalton, 61 Kan. 257; Atkin v. Kansas, 191 U.S. 207; Byars v. State, 102 P. 804; Mallette v. Spokane, 137 P. 491; Wagner v. Milwaukee, 192 N.W. 994. (7) Like the eight-hour law, which has been upheld in this State, the minimum wage ordinance is in line with "enlightened sentiment elsewhere." St. Louis Quarry & Construction Co. v. Frost, 90 Mo.App. 677. (8) The minimum wage ordinance assailed in this proceeding can be soundly sustained as an exercise of the police power of the city. Atkin v. Kansas, 191 U.S. 207.

In Banc.

OPINION

PER CURIAM

Appellants brought this suit in the Circuit Court of the City of St. Louis seeking an injunction to restrain respondents from proceeding to award and perform a contract between the City of St. Louis and Skrainka Construction Company for paving a public alley in St. Louis and to restrain respondents from levying a special tax against appellants' property on account of the proposed improvement. A general demurrer was filed to the petition by all the defendants and this demurrer was sustained by the trial court. The sole ground of the demurrer was that the petition failed to state facts sufficient to constitute a cause of action against respondents. Appellants having refused to plead further, final judgment was entered dismissing the petition and from this judgment appellants have appealed to this court. The petition alleges violation of the Constitution of Missouri and of the United States and hence the jurisdiction of this court attaches.

The contentions made by the parties in this court render it unnecessary for us to set out in detail the averments made in the appellants' petition. The petition charged that prior to awarding the contract for the proposed improvement the city had passed a purported ordinance known as Ordinance No. 40179 which, among other things, prescribed minimum rates of wages to be paid by contractors doing work under contract with the city; that all bidders for the work involved in the proposed improvement here in question were notified, prior to submitting their bids for such work, that they would be required to comply with the provisions of such ordinance and that the ordinance would in terms be made a part of any contract which might be awarded to the successful bidder for the work; that respondent Skrainka Construction Company was the lowest bidder for the work in question, and that the city has signed, or is about to sign, a contract with that company for the work and that such contract by its terms will require the company to comply with the provisions of Ordinance No. 40179 before mentioned; that if such contract is awarded Skrainka Construction Company and the work therein provided for performed by said contractor that a special tax will be levied against appellants' property and that such special tax will purport to be a lien and cloud against the title of appellants as owners of the property. As the present controversy is submitted here we understand that all parties concede that its proper solution turns entirely upon the validity of Ordintnce No. 40179 heretofore mentioned. We understand also that it is conceded by all parties that if the ordinance just mentioned is valid the judgment of the trial court was a proper one and on the other hand if the ordinance is void the judgment below was erroneous and the cause should be reversed and remanded.

The Constitution of Missouri has conferred authority upon the qualified voters of the city of St. Louis to frame and adopt a charter. The existing charter of the city of St. Louis was adopted in 1914, and by virtue of its adoption it became and remains the organic law of the city. In general the charter of a city bears the same relation to its ordinances that the Constitution of a state bears to its statutes. [Quinette v. St. Louis, 76 Mo. 402.] With some exceptions not pertinent here, the charter of the city of St Louis requires that "all public work" shall be let "by contract to the lowest responsible bidder." [Charter of the city of St. Louis, Art. XXII, Sec. 4.] The...

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