Mallon v. Board of Water Com'Rs.

• Decision Date: 16 May 1910
• Parties: MALLON et al. v. BOARD OF WATER COM'RS et al.
• Court: Missouri Court of Appeals

128 S.W. 764

144 Mo. App. 104

MALLON et al. v. BOARD OF WATER COM'RS et al.

Kansas City Court of Appeals. Missouri.

May 16, 1910.

Rehearing Denied June 6, 1910.

1. WATERS AND WATER COURSES (§ 203)— MUNICIPAL WATERWORKS—METERS—POWER OF CITY.

Under Kansas City Charter, art. 11, § 2, requiring the board of water commissioners to maintain and operate a waterworks system, the city, through the board, can prescribe the use of a particular kind of meter and install them at the consumers' expense.

2. MUNICIPAL CORPORATIONS (§ 236)—SUPPLIES —PURCHASE.

Under Kansas City Charter, art. 4, § 24, requiring the purchasing agent to buy material and supplies used by the city, except as otherwise provided, under article 11, § 4, authorizing the board of water commissioners in an emergency to make purchases in sums of $500 or less without competition, and under article 18, § 14, requiring purchases to be let to the lowest and best bidder, except as otherwise provided, in the purchase of material or supplies, the purchasing agent must offer opportunity for open and competitive bidding by those desiring to sell, except in emergencies when the board deems it advisable to buy in sums not exceeding $500, as provided by section 4, and, in all other cases, the purchase must be made by the purchasing agent on competitive bidding.

3. MUNICIPAL CORPORATIONS (§ 236)—SUPPLIES —PURCHASE.

Under Kansas City Charter, art. 11, § 4, authorizing the board of water commissioners to purchase materials and supplies in an emergency without competitive bidding, the necessity for purchasing water meters for installation by consumers cannot be regarded as an emergency, where the constant demand for meters could be approximately estimated in advance.

4. WORDS AND PHRASES—"EMERGENCY."

The word "emergency" signifies some sudden or unexpected necessity, requiring immediate or at least quick action.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Bill by John G. Mallon and others against the Board of Water Commissioners and others. From a decree for respondents, plaintiffs appeal. Reversed and remanded.

W. B. Dickinson, for appellants. John T. Harding, City Counselor, and Hunt C. Moore, Associate City Counselor, for respondents.

ELLISON, J.

Plaintiffs, as taxpayers of Kansas City, Mo., filed their bill against defendants, who are the board of water commissioners, the purchasing agent, the treasurer, and collector of water rates of such city, whereby they seek to prevent defendants, or either of them, in their respective official capacities, from purchasing water meters to be installed in residences of water consumers in said city. The prayer of the bill reads as follows: "Wherefore plaintiffs pray that the defendants be enjoined and restrained from buying water meters for the purpose of reselling the same, and from paying for said water meters out of the funds of the water department of Kansas City or out of the funds of defendant Kansas City, or in any manner engaging in the business of buying and selling water meters on account of Kansas City, and that defendants be enjoined and restrained from selling any water meters or other property owned by Kansas City, except at public auction, and that the defendants be enjoined and restrained from employing, on behalf of Kansas City, any employés for the purpose of setting meters or repairing meters not owned by Kansas City, and from paying the wages or salary of any such employés out of the funds of the water department of Kansas City, and for all other equitable and proper relief which the plaintiffs and all others similarly situated may be entitled to receive." The controversy between the parties covers much ground, but, in a general way, it may be said to involve the right of the city in the matter of buying water meters and in selling and installing them in residences. Plaintiffs charge that the purchasing agent purchases the meters in large quantities without competitive bidding, and thereby substitutes private contracts for the public competition required by the charter. They deny his right to do so. They likewise deny the right of the city or its employés to set or repair the meters.

It is provided in section 2 of article 11 of the charter that it shall be the duty of the board of water commissioners "to maintain and operate a waterworks system" to supply the city and its inhabitants with water. Section 4 of the same article is as follows: "The contracts for the doing of all work and the furnishing of all materials and supplies for the waterworks and fire department systems shall be let by the board of fire and water commissioners, subject to the provisions of article 4 of this charter relating to the city purchasing agent, except that in cases of emergency when the purchasing agent is unable to furnish materials, machinery, tools and supplies immediately necessary for the use of said board, the same may be purchased by the board...