Verdin v. City of St. Louis

• Citation: 27 S.W. 447
• Parties: VERDIN et al. v. CITY OF ST. LOUIS et al.
• Decision Date: 25 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 447

VERDIN et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri

June 25, 1894

In banc. Appeal from St. Louis circuit court; Leroy B. Valliant Judge.

Suit by John N. Verdin and others, trustees, against the city of St. Louis; Robert E. McMath, president of the board of public improvements; Isaac H. Sturgeon, comptroller; and the Barber Asphalt Paving Company. Judgment for defendants, and plaintiffs appeal. Reversed.

Hiram J. Grover and Dennis Devoy, for appellants.

W. C Marshall and Adiel Sherwood, for respondents.

OPINION

BURGESS, J.

This is a suit in equity brought by the plaintiffs, as trustees under the will of James Verdin, deceased, to cancel a certain tax bill, if issued, by the defendant city in favor of the Barber Asphalt Paving Company; if not issued, to restrain the issuance and delivery thereof, and to divest the lien of said tax bill. The Barber Asphalt Company answered. The defendants city of St. Louis, McMath, and Sturgeon filed a demurrer to the petition, which was sustained, the petition dismissed and judgment rendered in favor of defendants against the plaintiffs, and for costs, from which judgment they appealed. The salient facts, as they appear from the allegations in the petition, are about as follows:

A petition for the improvement of Jefferson avenue was circulated among a portion of the interested property holders, but was not signed by a majority of them, nor by persons owning a majority of the front feet of property to be affected by the costs of the improvements. It was not signed by plaintiffs, nor were they aware of any desire on the part of the property holders to have the street reconstructed with Trinidad Lake asphaltum until after the contract was let. The petition was never published, and in the order of the board of public improvements fixing a day for considering said reconstruction the petition is not mentioned. In the notice published, "all citizens interested in any of the improvements" are requested to attend a meeting at its office in the city hall, at the hour of 10 a. m., on the 20th day of September, 1892, for the purpose of reconstructing with asphaltum certain streets named in said notice, and, among the rest, Jefferson avenue. The notice did not say "Trinidad Lake asphaltum," but simply said "asphaltum." On the same day the board considered the reconstruction of Jefferson avenue, and recommended its reconstruction with asphaltum, and ordered its committee on street department to prepare and submit an ordinance for such reconstruction. An ordinance (No. 17,151) was, in pursuance of said recommendation, reported and adopted by the municipal assembly, providing for the reconstruction of the streets with Trinidad Lake asphaltum. This ordinance also directed the board to contract at the same time for the maintenance of the street for nine years. Thereafter, on April 11, 1893, the president of the board of public improvements was by said board directed to advertise sundry, lettings for public work, and May 9, 1893, at 12 m., was set for opening bids thereunder. The advertisement was: "For reconstruction, with best quality of Trinidad Lake asphalt, Jefferson avenue, from Adams street to Market street, and for maintenance of the same; the streets to be maintained in good condition for a term of nine years beginning one year after the completion and acceptance of the work." Among these specifications and forms of contract exhibited in the office of the street commissioner for the information of bidders for said work referred to in the advertisement was a provision that said commissioner should have the right to make alterations in the line, grade, form, or dimensions of the work to be let, either before or after the commencement of the work, and plaintiffs aver that all bidders were bound to take notice thereof. That there was no notice given that the board of public improvements would at any time consider the matter of maintenance of said Jefferson avenue after reconstruction, or that such matter would be taken into consideration in the same letting, bidding, and contract. That in so doing said board claims to have been acting by authority of section No. 542 of the Revised Ordinances of said city (Revision 1887), by which it is provided that, whenever a street of St. Louis is to be improved on petition of the adjoining owners, said board may submit to the municipal assembly a bill for letting on contract the constructing or reconstructing and maintenance for a term of years, and after such bill shall have become a law said board shall advertise for proposals, including construction or reconstruction and maintenance, and under the same regulations as for the improvement of streets. The petition alleges that said ordinance is null and void because repugnant to the scheme and charter of St. Louis, and especially section 27, art. 6. That, as to the maintenance of the roadway of that part of Jefferson avenue so reconstructed, said board did not submit to the assembly of defendant city estimates of the amount of cost and maintenance, either as to material, or anything connected therewith, nor was it specified what kind of asphalt should be used in its maintenance. That when the bid was opened therefor, referred to in said ordinance, there was found to be but one under said letting for the reconstruction and maintenance of Jefferson avenue, and that was by defendant Barber Asphalt Company, for the sum of $18,508.80, for which sum it obtained the contract. That the Barber Asphalt Company is a corporation, and has, by concession or grant from the government of the island of Trinidad, the exclusive right to remove and take asphalt from the asphalt or pitch lake on that island.

The petition further alleges: "That outside of said pitch lake, and outside of the government lands in the island of Trinidad, all covered by the monopoly created by said concessions and the monopoly of the defendant Barber Company there are other sources of supply of asphalt, of just as good a quality for every purpose, in the island of Trinidad itself, and in the island of Pedermales, sixteen miles south from said Trinidad island, also in the state of Bermudez, in the republic of Venezuela, and also other deposits in the republic of Mexico and in the island of Cuba and in the United States of America, from all of which other deposits large quantities have been and are now being taken and sold in countries presenting a demand for the same, where there is free competition. And plaintiffs now aver that there is no good or sufficient reason for the city of St. Louis, by recommendation of its board of public improvements or by ordinance, to direct the reconstruction of its streets with Trinidad Lake asphalt, to the exclusion of other asphalts of an equally good quality, above referred to. By so limiting the reconstruction of its streets to the material known as ‘Trinidad Lake Asphalt,’ all such reconstruction is thrown into the hands of the defendants the Barber Asphalt Paving Company, which results in the city and its property owners being required to pay a larger price for such reconstruction than they would have to pay if the material for reconstruction were not limited to Trinidad Lake asphalt. That while the petition aforesaid, framed and circulated among the property owners on Jefferson avenue by the agents and solicitors of the defendant the Barber Asphalt Paving Company, did in terms ask for the reconstruction of said street with Trinidad Lake asphalt, which is controlled by the monopoly hereinbefore alleged, nevertheless said petition was not signed by a majority of the property holders to be affected by the cost of such reconstruction; and the board of public improvements, in finally selecting the material for such reconstruction, and recommending an ordinance therefor, were not in any manner bound by law, duty, or morals to follow the suggestion of said petition as to Trinidad Lake asphalt, nor to recommend such reconstruction of Trinidad Lake asphalt, of which the said Barber Asphalt Paving Company owns and exercises a monopoly, and as to which there can be no competition, as required by the charter of the city of St. Louis. On the contrary, as plaintiffs aver, said board of public improvements were bound by law, duty, and morals, in the interest of said city and of all of said property owners, to select and recommend for such reconstruction a genuine asphalt, suitable for the purpose, to be taken and drawn from any deposit or source of supply anywhere in the world, so as to bring to the city, its taxpayers and property owners, aforesaid, the benefit of the competition contemplated by the charter of said city. That the limitation of said board and by the said city of St. Louis, in said ordinance for said reconstruction, to Trinidad Lake asphalt, destroyed all competition as to asphalt, and as to said reconstruction; and plaintiffs aver that wherever, in the past, the ordinance of the city of St. Louis for the reconstruction of any of the streets with asphalt has obtained a limitation to Trinidad Lake asphalt, there has been but one bid, and that by the Barber Asphalt Company, and, under the condition of things as heretofore set forth, there never can be but one bid under any such ordinances. That inasmuch as the said Barber Asphalt Paving Company is of necessity the sole and only bidder on any such contracts, and was of necessity the only bidder for the work of reconstruction aforesaid on Jefferson avenue, the said company was practically given a monopoly and exclusive control of the bids for all other material, limestone, cement, and concrete incidentally necessary for the work of said reconstruction, and enabled said Barber Asphalt Paving Company to obtain an excessive and exorbitant...