Shoenberg v. Field

• Decision Date: 02 June 1902
• Citation: 68 S.W. 945,95 Mo. App. 241
• Court: Missouri Court of Appeals
• Parties: SHOENBERG v. FIELD.<SMALL><SUP>1</SUP></SMALL>

68 S.W. 945

95 Mo. App. 241

SHOENBERG v. FIELD.¹

Court of Appeals at Kansas City, Missouri.

June 2, 1902.

MUNICIPAL CORPORATIONS — STREET PAVING — SELECTION OF MATERIAL — MONOPOLY — VALIDITY OF CONTRACT — ESTOPPEL.

1. A city charter authorized the paving of streets by resolution of the city council, and that, if the board of public works should recommend the paving of any street, the resident owners thereof might within a fixed time select from not less than two kinds of material designated by the board of public works the material with which the street should be paved. The board recommended the paving of a business street and designated certain materials, from which the selection should be made. The majority of the landowners selected the material, but their selection was not presented to the board until after the time limited by the charter. The board thereupon selected the material so recommended by the record, stating that it "hereby selects and designates" the material chosen by the property owners. Held to show that the board passed its own judgment on the proposal, and did not rely on the selection made by the property owners.

2. The board of public works has no power, in selecting a paving material, to choose one manufactured by one company only, to the exclusion of the same kind of material manufactured by other companies, where the city charter provides that the work shall be let to the lowest bidder.

3. The fact that the owner of real estate on a street about to be paved petitioned the board of public works to pave such street by the use of a certain material does not estop him, where the board thereafter contracts for the paving of the street by the use of such material, to object on the ground that such material is made by one person exclusively, so that the letting of the contract is illegal, as not made to the lowest bidder, where such petition as so signed by him was presented after the time authorized by charter, and was thereby null and void.

4. Where a city charter provides that all improvements shall be let by contract to the lowest bidder, and vitrified brick for paving purposes was a common article of manufacture and sale, a provision in a contract to be let for paving, limiting the vitrified brick to that manufactured by one company alone, is illegal.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by M. Shoenberg against R. H. Field to enforce a lien on a special tax bill. Judgment for plaintiff. Defendant appeals. Reversed.

R. H. Field and N. F. Heitman, for appellant. E. Wright Taylor, for respondent.

ELLISON, J.

This action is to enforce a lien on a special tax bill issued for paving a street in front of the defendant's property in Kansas City as a "business street." The judgment in the trial court was for the plaintiff. Provision is made in section 2 of article 4 of the charter of Kansas City for paving the streets by the city council passing a resolution declaring it to be necessary, and, if no remonstrance from a majority of property owners was thereafter presented in a designated time, by passing an ordinance directing a contract for the work. The last proviso in said section authorizes the paving of a street as a business street. It reads as follows: "Provided, further, however, that if the board of public works shall unanimously recommend to the common council that any business street or part thereof be paved, * * * and the payment therefor is to be made in special tax bills, and the common council shall, by ordinance, order such work to be done by a vote of two-thirds of the members elect of each house of the common council, then such work may be done without any resolution, as hereinbefore provided, and regardless of such remonstrance. When the work shall be so recommended by the board of public works, and so ordered by the common council as last above mentioned, the resident owners of the city who own a majority in front feet of the lands belonging to such residents and fronting on such street, * * * or part thereof to be improved, shall have the right to select the material with which such street * * * or part thereof shall be paved, from not less than two kinds of materials, to be designated by the board of public works, such selection to be made by them within ten days after such ordinance shall have taken effect, and been published for ten days in the newspaper at the time doing the city printing, which selection shall be by petition, addressed and delivered to the board of public works. If such selection be not made within such time, then the board of public works shall designate the material with which such street * * * or part thereof shall be improved."

The board of public works, as thus authorized to do, unanimously recommended that the street in controversy be paved as a business street, and the council duly passed an ordinance to that effect. The board of public works designated the material in words following, to wit: "Trinidad Lake asphalt on concrete, to be laid according to detail four (4) of asphalt pavement, approved by said board August 11, 1896, and on file in the office of said board. Bermuda, California, Trinidad, or any other asphalt equally as good as those designated, on concrete, to be laid according to detail F of asphalt pavement, approved by said board October 18, 1892, and on file in the office of said board. American bituminous rock on concrete, to be laid according to detail I of asphalt pavement, approved by said board August 11, 1896, and on file in the office of said board. Vitrified brick, as manufactured by the Diamond Brick & Tile Company, on concrete, to be laid according to detail I of brick pavement, approved by said board November 26, 1895, and on file in the office of said board. Vitrified brick, as manufactured by the Kansas City Vitrified Brick Company, the Pittsburg (Kansas) Vitrified Brick Company, or any other vitrified brick equally as good as those designated, on concrete, to be laid accordingly to detail four (4) of brick pavement, approved by said board August 11, 1896, and on file in the office of said board. Granite or sandstone blocks on concrete, to be laid according to detail C of stone block...