Shoenberg v. Field

• Decision Date: 02 June 1902
• Citation: 68 S.W. 945,95 Mo.App. 241
• Parties: M. SHOENBERG, Respondent, v. R. H. FIELD, Appellant
• Court: Kansas Court of Appeals

68 S.W. 945

95 Mo.App. 241

M. SHOENBERG, Respondent, v. R. H. FIELD, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. Jno. W. Henry, Judge.

REVERSED.

Judgment reversed.

N. F Heitman and R. H. Field for appellant.

(1) It having been made clear by the testimony that the board of public works did not exercise its judgment in the selection of the vitrified brick of the Diamond Brick & Tile Company as the brick material for the pavement, and that such designation and selection by the board of public works was due to a practice of the board, then in vogue, to designate whatever materials might be specified in a petition, signed by residents owning a majority in front feet of the land fronting on a proposed street pavement, filed by the agent or promoter of materials of a particular manufacturer or owner the taxbills are void. Birdsall v. Clark, 73 N.Y. 73; St. Louis v. Russell, 116 Mo. 248; Neill v. Gates, 152 Mo. 594; City of Rich Hill v. Donnan, 82 Mo.App. 386; Elkhart County Lodge v. Cary, 98 Ind. 238; Brooks v. Cooper, 50 N.J.Eq. 761; Common Wealth v. Cambridge, 7 Mass. 166; Dudley v. Butler, 10 N.H. 281; Dillon Mun. Corp. (4 Ed.), sec. 96 and sec. 779; Thomas v. Railroad, 101 U.S. 71; Central Transp. Co. v. The Pullman Car Co., 139 U.S. 24. (2) There is and could be no estoppel to make any defense made to the special taxbills. But any and every defense to the taxbill for any non-compliance with a charter provision is as much open to a property-owner petitioning for the work as to a property-owner who did not petition for the work. McClauren v. City of Grand Forks, 6 Dak. 397; Steckert v. City of Saginaw, 22 Mich. 104. (3) Mutuality is a necessary ingredient of an estoppel. There can be no estoppel of one party unless the other is estopped. Hempstead v. Easton, 33 Mo. 142; Carondolet v. St. Louis, 29 Mo. 527; In re Curtis, 91 F. 738, 742. (4) The failure of the board of public works to exercise its own judgment in the designation of material for the pavement, unbeguiled and unbiased by the petition signed by property-owners, filed by the agent of the Diamond Brick & Tile Company, and the ultimate designation by the board of public works of the vitrified brick manufactured by the Diamond Brick & Tile Company, eo nomine, being contrary to public policy, no estoppel to make that defense can be grounded on such petition. Greenhood on Public Policy, pp. 670, 115; Brooks v. Cooper, 50 N.J.Eq. 761; Elkhart County Lodge v. Cary, 98 Ind. 238; In re Curtis, 91 F. 738; Kohn v. Melcher, 43 Id. 644; Ry. Co. v. Ry. Co., 61 Id. 993; Sprague v. Rooney, 104 Mo. 349. (5) In no view could the petition of resident property-owners be any estoppel against appellant who did not sign such petition. The signature of his co-tenant to the petition only purported to represent an undivided one-half of the lots of land described in the tax-bills sued on. It could therefore be no estoppel against appellant. Reed v. Crapo, 127 Mass. 39; s. c., Reed v. Crapo, 133 Mass. 201; Mulligan v. Smith, 59 Cal. 206. (6) The delegation of power to the board of public works is to designate different kinds of paving materials and not different manufacturers or species of the same kind of materials, nor a different manner or extent of the work. The power delegated is to be strictly construed and is not to be extended by implication. Dillon Munic. Corp. (4 Ed.), sec. 763; Beach Pub. Corp., secs. 557, 1042, 1166; Burroughs on Taxation, sec. 148; Cooley on Taxation (2 Ed.), 276; Westport ex rel. v. Mastin, 62 Mo.App. 654; City of Nevada v. Eddy, 123 Mo. 546; The City of St. Louis v. Bell Telephone Co., 96 Mo. 623; Knapp v. Kansas City, 48 Mo.App. 485. (7) A monopoly is contrary to public policy, unless created under express sanction of sovereign authority. A city is not a sovereign authority. It has such powers, and only such powers as are delegated by the sovereign power of the State. It therefore follows as established and universal municipal law, that a city can not, without express charter authority, make a contract nor pass any ordinance which creates or which tends to create a monopoly and that any such contract or ordinance is absolutely void whether there is or is not a provision in the city's charter requiring work or the contract to be let to the lowest bidder. Dillon on Municipal Corp. (4 Ed.), secs. 322, 325, 329 and particularly 362; City of Atlanta v. Stein, 111 Ga. 789; Adams v. Brennan, 177 Ill. 199; City of Chicago v. Rumpf, 45 Ill. 90; Town of Crowley v. West, 52 La Ann. 526; Brooks v. Cooper, 50 N.J.Eq. 761; State ex rel. v. Warden of Prisons, 157 N.Y. 126; Sayre Burro v. Phillips, 148 Pa. St. 482; McQuiddy v. Brannock, 70 Mo.App. 548; State v. Portland Nat. Gas Co., 153 Ind. 489; United States v. Chesapeake & O. Fuel Co., 105 F. 93; United States v. Coal Dealers Assn., 85 F. 252; San Antonio Gas Co. v. Texas, 22 Tex. Civil App. 118; San Antonio Gas Co., v. Texas, 54 S.W. 289; Texas Standard Oil Co. v. Adone, 83 Tex. 650; Bailey v. Master Plumbers, 103 Tenn. 110; Nester v. Continental Brewing Co., 161 Pa. St. 473; Kiley v. Oppenheimer, 55 Mo. 374; St. Louis Quarry & Const. Co. v. Von Versen, 81 Mo.App. 519; Brady v. Bartlett, 56 Cal. 350.

E. Wright Taylor for respondent.

Filed an argument analyzing the authorities in appellant's brief.

OPINION

ELLISON, J.

--This action is to enforce a lien of a special taxbill, 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, authorizing the paving of a street as a business street, 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 taxbills, 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 herein before 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 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 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 pavement, approved by said board July 9, 1892, and on file in the office of said board."

Publication was duly made as required by the charter, and the property-owners owning a majority of the front feet on the street undertook to select the material from that designated by the board of public works, by presenting a petition signed by them naming "Vitrified brick on concrete to be laid in accordance with detail I, of brick pavements, approved by the board of public works, November 26, 1895." This according to the ordinances and proofs in the case, meant a certain vitrified brick manufactured by a certain company known as "The Diamond Brick and Tile Company." But this petition was not presented until one or more days after the ten days, limited by the charter for its presentation,...