Koch v. Board of Regents of Northwest Mo. State College

• Decision Date: 13 April 1953
• Docket Number: No. 1,No. 43137,43137,1
• Parties: KOCH et al. v. BOARD OF REGENTS OF NORTHWEST MISSOURI STATE COLLEGE et al
• Court: Missouri Supreme Court

Page 785

256 S.W.2d 785

KOCH et al. v. BOARD OF REGENTS OF NORTHWEST MISSOURI STATE COLLEGE et al.

No. 43137.

Supreme Court of Missouri, Division No. 1.

April 13, 1953.

Gene Thompson, J. Dorr Ewing, Maryville, Alva F. Lindsay, St. Joseph, for appellants.

Marshall E. Ford, Maryville, J. V. Gaddy, St. Joseph, for respondents.

LOZIER, Commissioner.

This is an action wherein plaintiffs-appellants (herein called plaintiffs) challenge the validity of a contract entered into between defendant-respondent Board of Regents of Northwest Missouri State College (herein called the Board) and defendant-respondent Thomas Construction Company, a Missouri corporation (herein called Thomas). Plaintiffs appeal from an order sustaining defendants' motions to dismiss, and dismissing, plaintiffs' petition.

We must first determine our jurisdiction. Fanchon & Marco Enterprises v. Dysart, Mo.Sup., 189 S.W.2d 291, 293. In their brief, plaintiffs state that this court has jurisdiction 'because the amount of money involved in this litigation, the expenditure of which is sought to be enjoined, exceeds the sum of $7500.' But our jurisdiction (insofar as based upon a money amount) depends, not upon the 'amount of money involved' but upon 'the amount in dispute'. Section 3, Art. V, Const., 2 V.A.M.S., p. 31. And the record must affirmatively show that that amount exceeds $7500. Gillespie v. American Bus Lines, Mo.Sup., 246 S.W.2d 797, 798. And where, as in the instant case, 'relief other than a money judgment is sought the fact of a value in excess of $7500 must affirmatively appear from the record and may not be surmised or conjectured.' Cooper v. School District of Kansas City, Mo.Sup., 239 S.W.2d 509, 511[3-5].

The pertinent portions of the instant record, upon which we must rule this jurisdictional question, consists of plaintiffs' petition and defendants' motions to dismiss the petition for failure to state a claim upon which relief could be granted against defendants or either of them.

Plaintiffs, as individuals and as members of a construction company (a copartnership) alleged: That they were property owners and taxpayers of Buchanan County, a county in the territory comprising the college district in which Northwest Missouri State College is located; that, under sections 174.020 and 174.040 RSMo 1949, V.A.M.S., the Board manages and controls 'the business affairs and expenditures of public funds belonging to' the college; that on April 28, 1951, a certain building on the college campus, 'a public building constructed and maintained by the expenditure of public funds and monies from public tax money and funds provided by appropriations' from the state, was damaged by fire and explosion; that the cost of its reconstruction would exceed $10,000; that on December __, 1951, the Board awarded a contract for such reconstruction to defendant Thomas at a contract price of $203,390; that, at the time of the award of the contract, the Board, 'had on deposit and under its control public funds belonging to the taxpayers of the State of Missouri in an amount exceeding $250,000.00'; that the cost of such reconstruction 'must be paid from said public funds * * * all of which is a matter of public interest and concern to the people and taxpayers of the State of Missouri and to plaintiffs herein as taxpayers and as representing said public interest' and all such taxpayers; that, in awarding said contract, the Board was seeking 'to expend and obligate said public funds' for $203,390.

Plaintiffs alleged that the Board had entered into the contract without having, prior thereto, solicited bids by advertising in Nodaway County (where the work was to be done, see section 8.250 RSMo 1949, V.A.M.S.), and without receiving bids after such advertising as required by law; and that plaintiffs had offered in writing to accept and perform said contract, upon exactly the same terms and specifications, at a contract price of $173,616, and to furnish adequate surety bond to guarantee performance thereof; but that the Board 'arbitrarily refused to consider said offer and wrongfully colluded with and did award said contract to defendant Thomas'; that plaintiffs were experienced builders and, at the time of making their said offer, had available the machinery and trained workmen necessary to efficiently perform said contract and were ready and willing to guarantee said performance by adequate surety bond and 'could have performed said contract as fully and efficiently as' Thomas.

Plaintiffs alleged that the Board's failure to advertise for bids, its arbitrary refusal to consider plaintiffs' offer and its award of the contract to Thomas 'at an excessive cost of over $29,000 to the Board * * * and the taxpayers' was 'wrongful, unlawful and fraudulent and contrary to the public interest and would be a wrongful and fraudulent expenditure of public money.'

Plaintiffs prayed 'that the court order, adjudge and decree that the awarding of said contract * * * was and is unlawful and wrongful; and that...