Meek v. The City of Chillicothe

• Decision Date: 18 May 1914
• Citation: 167 S.W. 1139,181 Mo.App. 218
• Parties: JIM E. MEEK and EMMA MEEK, his Wife, Appellants, v. THE CITY OF CHILLICOTHE, Missouri, CHRIS. BOEHNER, THOMAS ENGLAND, JOHN BURCH, RICHARD STREHLOW, C. E. MURPHY, EDWARD BARGDOLL, ROBERT BRUCE, CHARLES SPOONER and JO BROADDUS, Respondents
• Court: Kansas Court of Appeals

167 S.W. 1139

181 Mo.App. 218

JIM E. MEEK and EMMA MEEK, his Wife, Appellants, v. THE CITY OF CHILLICOTHE, Missouri, CHRIS. BOEHNER, THOMAS ENGLAND, JOHN BURCH, RICHARD STREHLOW, C. E. MURPHY, EDWARD BARGDOLL, ROBERT BRUCE, CHARLES SPOONER and JO BROADDUS, Respondents

Court of Appeals of Missouri, Kansas City

May 18, 1914

Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

L. A Chapman and Paul D. Kitt for appellants.

Frank Sheetz, John H. Taylor and Culver & Phillips for respondents.

OPINION

JOHNSON, J.

This is an action in equity to enjoin the city of Chillicothe from entering into a contract for paving one of the public streets pursuant to an ordinance enacted for that purpose. Plaintiffs are the owners of property which would be assessed for the improvement. Chillicothe has less than 30,000 inhabitants, is incorporated under a special charter and therefore derives power and authority to pave its streets by virtue of sections 9618 to 9620, Revised Statutes 1909. The proceedings prescribed in those sections for the paving of a street include the passage by the council and the publication of a resolution declaring such work and improvement necessary to be done and the preparation by the engineer and filing of plans and specifications and of an estimate of the cost of the improvement. Property owners are given an opportunity to protest against the proposed improvement in writing and if owners who are residents of the city and who own a majority of the front feet abutting on the street do not protest within the allotted time "the council shall have power to cause a contract for said work to be let to the lowest and best bidder on the plans and specifications filed as aforesaid with the city clerk by the city engineer . . . not less than one week's advertisement for bids thereon being made in some newspaper published in the city."

Further it is provided: "When the council shall by ordinance find and declare that a majority of the resident owners of the property liable to taxation therefor, who shall also own a majority of the front feet owned by residents of the city abutting on the street or alley proposed to be improved, have not filed with the city clerk a protest against such improvement, such finding and declaration shall be conclusive after the execution of the contract for said improvement, and no special tax bill shall be held invalid for the reason that a protest sufficiently signed was filed with the city clerk."

All of these statutory prerequisites were properly performed in the present case but before the contract was let plaintiffs brought the present suit.

The resolution, specifications, estimate, initiatory ordinance and the various publications required by law provided for the pavement of the street with "Hassam pavement" a patented process controlled by a monopoly. The real ground on which plaintiffs claim the right to enjoin the city from letting the contract is that the pleaded and proved facts show beyond question that the patented material does not belong to the class exempt from the statutory mandate that the contract shall be let only after the prescribed opportunity for competitive bidding has been given. It appears from the evidence that the council selected Hassam pavement in deference to the written request of a majority of the property owners. A strong minority protested, but the council found, and the ordinance for doing the work recited, that the protest was not signed by a majority and there is no evidence in the record contradictory of that finding and recitation. Plaintiff introduced two witnesses who testified as experts that Hassam pavement which is a species of concrete paving is inferior in every way to concrete mixed and applied in the ordinary manner, is less expensive, and that the street could be paved with common concrete at a cost of about two-thirds of the estimate for Hassam pavement.

Plaintiffs argue from these facts that the monopoly created by the patent is nothing short of a fraudulent device by which the monopolistic contractor is enabled to obtain sixty per cent more for inferior concrete than standard...