Wegmann Realty Co. v. City of St. Louis

• Citation: 47 S.W.2d 770,329 Mo. 972
• Decision Date: 05 March 1932
• Docket Number: 31695
• Parties: Wegmann Realty Company, a Corporation, Appellant, v. City of St. Louis, a Municipal Corporation; E. R. Kinsey, President of the Board of Public Service of the City of St. Louis; Robert B. Brooks, Edward A. Steininger, John L. Pritchard and Harry L. Salisbury, Members of and Constituting the Board of Public Service of the City of St. Louis, Missouri, and Trinidad Asphalt Manufacturing Company, a Corporation
• Court: United States State Supreme Court of Missouri

47 S.W.2d 770

329 Mo. 972

Wegmann Realty Company, a Corporation, Appellant, v. City of St. Louis, a Municipal Corporation; E. R. Kinsey, President of the Board of Public Service of the City of St. Louis; Robert B. Brooks, Edward A. Steininger, John L. Pritchard and Harry L. Salisbury, Members of and Constituting the Board of Public Service of the City of St. Louis, Missouri, and Trinidad Asphalt Manufacturing Company, a Corporation

No. 31695

Supreme Court of Missouri

March 5, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Affirmed.

Kinealy & Kinealy and Barth & Baron for appellant.

(1) The Board of Public Service of the City of St. Louis is an administrative body. The acts and findings of the board are not conclusive. Any determination of the board is subject to review by the courts. Findley-Kehl Inv. Co. v O'Connor (Mo. Sup.), 256 S.W. 798. (2) The ordinance authorizing the improvement must specify that the work shall be done in accordance with detailed plans and specifications finally adopted and approved by the Board of Public Service before bids are advertised therefor. Charter of City of St Louis, Art. XXII, Sec. 2. (3) All public work must be let by the Board of Public Service after advertising for bids, and the board must let the work by contract to the lowest responsible bidder on the plans and specifications finally adopted. Charter of the City of St. Louis, Art. XXII, Sec. 4. (4) Where the charter of a city provides that public work must be let to the lowest responsible bidder, it means that there must be opportunity for active competition; any ordinance or contract requiring a patented material to be used, or material to be purchased of some designated person or which was manufactured by some designated person, or by some patented machine, or which is held in monopoly, is a violation of such salutary provision and void. Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Schoenberg v. Field, 95 Mo.App. 241; Cleveland Trinidad Paving Co. v. McLord, 145 Mo.App. 141; Taylor v. Schroeder, 130 Mo.App. 483. (a) The only exception to the foregoing rule is, if there is a patented material, or a material manufactured by some designated person or by some patented machine, or which is held in monopoly, of such exceptional value and superiority that it would be a public injury to be deprived of it, and there are no other persons having the same general character of material, which could be brought into competition, then the municipality is not forced to use other clearly inferior material on account of the requirements for competitive bidding. Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Schoenberg v. Field, 95 Mo.App. 241; Taylor v. Schroeder, 130 Mo.App. 483; Cleveland Trinidad Paving Co. v. McLord, 145 Mo.App. 141. (b) This court has announced its intention not to broaden or extend the scope of this exception. Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Curtice v. Schmidt, 202 Mo. 703. (c) Where, as in the case at bar, the evidence shows that the results required by the specifications can be obtained by the use of other mixers, and not by use of the Finley mixer only, it was the bounden duty of the Board of Public Service to have framed the specifications in such way as to have permitted the use of such mixers, and its requirement that the mixing be done in the Finley mixer was a denial of competition and void. Curtice v. Schmidt, 202 Mo. 702; Swift v. St. Louis, 180 Mo. 80. (5) Though it was held in Meek v. City of Chillicothe, 181 Mo.App. 218, l. c. 222, that where a city council specified a patented material or material held in monopoly, the court should not interfere except in cases of bad faith or of a clearly arbitrary abuse of discretion or fraud, such is not the law. Such is the rule of law where the city council performs a legislative duty, but not where it performs a ministerial act. When it specifies the material to be used or mode of construction, it performs a ministerial act. Flinn v. Gillen, 10 S.W.2d (Mo. Sup.) 923. (a) In the case at bar you are not dealing with the action of a legislative body but with the action of the Board of Public Service, an administrative body. Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 798. (b) It follows, therefore, that the question of whether or not the Finley sealed rotary mixer, having appliances for adding the asphalt cement in the form of a spray under high pressure to the aggregate in the mixer, produces a mixture of such exceptional superiority over the mixture produced by the use of other types of asphalt mixers so that the failure to specify the use of such sealed rotary mixer would work an injury upon the property owners, is one for the courts. It is not necessary to find that the Board of Public Service of the City of St. Louis acted arbitrarily, fraudulently, or in bad faith. Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Taylor v. Schroeder, 130 Mo.App. 486; Cleveland Trinidad Paving Co. v. McLord, 145 Mo.App. 141.

Julius T. Muench, Oliver Senti, Foristel, Mudd, Blair & Habenicht and Jourdan & English for respondents.

(1) The Board of Public Service of the City of St. Louis is vested with the duty and power of detailing the specifications under which public work is to be done. St. Louis Charter, Art. XXII, Secs. 1, 2; Swift v. St. Louis, 180 Mo. 80. (2) Courts will not substitute their judgment for that of the duly constituted authorities in matters involving executive or administrative discretion. Meek v. Chillicothe, 181 Mo.App. 218; Selecman v. Matthews, 15 S.W.2d 788. (3) Where there is a patented article which, in the eye of the authorities, is of such exceptional value and superiority that it would be a public injury to be deprived of it, such article may be specified. Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22; Gibson Const. Co. v. Walker, 170 Mo.App. 69; Empire Trust Co. v. Stepp, 275 S.W. 982; Verdin v. St. Louis (opinion of Barclay, J., 131 Mo. 102; opinion of Sherwood, Brace and Robinson, JJ., 131 Mo. 170); Paving Co. v. Field, 188 Mo. 182; Custer v. Springfield, 167 Mo.App. 354. And such articles may be specified by name, even though unpatented. Swift v. St. Louis, 180 Mo. 80. (4) It is only where the article is unpatented and is a common brand or article of commerce that it may not be specified. Schoenberg v. Field, 95 Mo.App. 241; Paving Co. v. McLord, 145 Mo.App. 141; Curtice v. Schmidt, 202 Mo. 703. The rule that the city may not make a monopoly where none has been created by law or by nature has no application where competition in furnishing the article specified is limited merely because there is a patent on the article. (5) In the absence of convincing proof that the Board of Public Service acted fraudulently or in bad faith in specifying a patented article in a public contract, courts will not hold such contract invalid, and mere proof that the patented article possesses no points of superiority does not show bad faith, but at most poor judgment, where the testimony of plaintiff's witnesses concedes equal merit to the patented and unpatented article and the unimpeached witnesses for defendant testify to superiority of the patented article, a decree adjudging such contract valid should be affirmed. Meek v. Chillicothe, 181 Mo.App. 218. The Supreme Court will defer to the findings of fact made by the Chancellor who heard and saw the witnesses and unless plainly erroneous will affirm the decree. Carpenter v. Kendrick, 299 Mo. 95; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1002-1005.

OPINION

Frank, J.

Action by plaintiff, appellant here, to enjoin the city of St. Louis, the members of its Board of Public Service and the Trinidad Asphalt Manufacturing Company, a contractor, from proceeding further with the performance of a contract for the improvement of certain described parts of Kingshighway with an asphalt pavement, which said contract had theretofore been duly awarded to said contractor. The grounds on which plaintiff sought to enjoin the improvement are that the detailed plans and specifications for such improvement required that the asphalt to be laid on the street should be mixed with a sealed rotary mixer, having appliances for adding the asphaltic cement in the form of a spray under high pressure to the sand and gravel and other elements of the asphalt mixture. It is alleged that one Finley has a patent on such a type of mixer and that no contractor could comply with the specifications unless he was licensed under the patents of Finley, although other mixers would do equally as good work and would comply with the specifications as to results to be obtained. It is further alleged that the specifying of the use of a sealed rotary mixer was an indirect way of requiring the use of a mixer and method patented by said Finley, all of which resulted in the stifling of competitive bidding and amounted to an arbitrary, oppressive and unlawful action on the part of the Board of Public Service and a fraud upon plaintiff and all persons owning property in the taxing district.

Plaintiff owns property in the taxpaying district and it is claimed the completion of the improvement and the issuance of tax bills to pay therefor would cast a cloud on plaintiff's title.

On September 28, 1931, the court ordered that defendants appear and show cause why a temporary injunction should not issue. A restraining order was issued pending a hearing on the order to show cause. On November 12, 1931, defendants made separate returns to the order to show cause and filed separate answers to the merits, to which plaintiff replied. A trial on the merits began on November 12, and was concluded on November 16, 1931. On November 20, 1931, the court rendered a decree dismissing...