The Cleveland Trinidad Paving Company v. McLord

• Decision Date: 28 June 1910
• Citation: 130 S.W. 371,145 Mo.App. 141
• Parties: THE CLEVELAND TRINIDAD PAVING COMPANY, Respondent, v. J. McLORD et al., Appellants
• Court: Kansas Court of Appeals

130 S.W. 371

145 Mo.App. 141

THE CLEVELAND TRINIDAD PAVING COMPANY, Respondent, v. J. McLORD et al., Appellants

Court of Appeals of Missouri, Kansas City

June 28, 1910

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

Judgment affirmed.

Henry N. Ess for appellants.

Section 12, art. 17, of the Kansas City charter, required competition and the ordinance prohibited it and the ordinance is void. Schoenberg v. Field, 95 Mo.App. 241; Curtice v Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Glennon v. Gates, 136 Mo.App. 421; Taylor v Schroeder, 130 Mo.App. 483.

Scarritt Scarritt & Jones and Alfred M. Seddon for respondent.

OPINION

ELLISON, J.

--Plaintiff's action is to enforce the lien of a special taxbill against defendants' property in Kansas City, Missouri. The judgment in the trial court was for the plaintiff.

The work for which the taxbill was issued consisted in paving one of the streets in Kansas City, on which defendants owned property which is now sought to be charged. The ordinance authorizing the work provided that the paving material should "consist of a genuine Venezuela Lake Asphalt (from the Inciarte Deposit, District of Maracaibo, Venezuela) pavement to conform in all respects to detail 'D' of asphalt pavements approved by the Board of Public Works," etc.

Defendants set up in their answer that: "At the time of the passage and approval of said ordinance there were in existence and in use in Kansas City various asphalts known as natural asphalts and artificial asphalts and known also as Trinidad Lake Asphalt taken from Lake Trinidad in the island of Trinidad, Trinidad Asphalt, Bermudez, California, Cuban and Mexican Asphalts, Asphalts in Cuba, Mexico, and Asphalts in Kentucky, in the Indian Territory, and in Oklahoma and in various other localities and American Bituminous Rock Asphalt of various kinds, all of which various asphalts had been and were in use as asphalt for street paving at the time of the passage and approval of said ordinance and were equal in all respects to the Venezuela Lake Asphalt (from the Inciarte Deposit, District of Maracaibo, Venezuela) the asphalt selected in and by said ordinance aforesaid for repaving Main street from north side of Thirteenth street to the south side of Nineteenth street."

It was further alleged in the answer that section 12 of article 17 of the charter of Kansas City required street paving work to be let to the lowest and best bidder; but that the ordinance in question by providing the material as herein set out, prevented competition, and it was therefore in violation of the charter in that it cut out all other asphalt material, as above designated and alleged to be the equal in all respects of that selected.

Plaintiff's reply contained the following: "Plaintiff admits and states that at the time of the passage and approval of the said ordinance there were in existence and in use in Kansas City various asphalts known as Trinidad Lake Asphalt, which is an asphalt taken from the asphaltic lake on the island of Trinidad; Venezuela Lake Asphalt, which is an asphalt taken from the lake or deposit known as the Inciarte Deposit in the District of Maracaibo, Venezuela; Gilsonite asphalt, which is an asphalt taken from a deposit in the State of Utah; and Rock asphalt, which consists of limestone or sandstone impregnated with asphaltic oil, which is mined and taken principally from the Indian Territory and the State of Kentucky and Trinidad asphalt taken from the island of Trinidad; and that all of the said asphalts were at the time of the passage and approval of the said ordinance, or had theretofore been used in Kansas City in street pavements, but plaintiff states that each of the said asphalts differed materially in chemical constituents and physical properties and either one of the said kinds of asphalts as a constituent part of street pavements is used to better advantage by varying the specifications as to the manner of its use and the proportions of other constituent elements of the pavement of which it is made a part; all of which is and was at all such times well known to the municipal authorities of Kansas City and property owners in said city. . .

"Plaintiff states that at all the times herein referred to the said Venezuela Lake Asphalt was an article of common and ordinary merchandise in Kansas City and throughout the United States and was of no greater price than any of the other kinds of asphalt in use as aforesaid, and that the plaintiff never owned said deposit or had any interest therein, nor did it ever have a monopoly of the use thereof."

Defendants filed a demurrer to the reply, which the trial court overruled, and judgment being thereupon rendered for plaintiff, defendants appealed.

In view of the demurrer we must take the allegations of the reply to be true. That is, we must assume that the Venezuela asphalt designated by the ordinance was not the same as the other asphalts named in the answer, and that each of these asphalts differed materially from the others "in chemical constituents and physical properties." We must also further assume to be true that the Venezuela Lake Asphalt "was an article of common and ordinary merchandise in Kansas City and throughout the United States and was of no greater price than any of the other kinds of asphalt in use as aforesaid, and that plaintiff never owned the deposit or had any interest therein, nor did it ever have a monopoly of the use thereof."

It has been definitely decided that where the charter of a city (as that of Kansas City) provides that public work and material purchased for public use, shall be let to the lowest and best bidder, it means that there must be opportunity for active competition; and that an ordinance requiring material to be purchased of some designated person, or which was manufactured by some designated person, was a violation of such salutary provision and was void. This we decided in Shoenberg v. Field, 95 Mo.App. 241, 68 S.W. 945; and it has been likewise several times decided by the Supreme Court. [Curtice v. Schmidt, 202 Mo. 703, 101 S.W. 61; Swift v. City of St. Louis, 180 Mo. 80, 95, 79 S.W. 172.] And by the Supreme Court of Kansas. [National Surety Co. v. Hydraulic Press Brick Co., 73 Kan. 196, 84 P. 1034.] And also by the New York Court of Appeals. [Smith v. Syracuse Imp Co., 161 N.Y. 484, 55 N.E. 1077.]

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