188 Mo. 182 | Mo. | 1905
This is an action begun in the circuit court of Jackson county, Missouri, to enforce the collection of a special taxbill issued by Kansas City in part payment of the contract price of paving Washington street in that city from Ninth street to Tenth street, with an asphalt pavement.
The answer of defendants consists of seven counts, and while we deem it unnecessary to reproduce all of them, to fully appreciate this controversy, it is essential, at least, to quote the first count in full. It is as follows:
“Defendants for their answer and defenses to the plaintiff’s petition and -the special taxbills sued on, submit the following:
“For their defense they state:
“1. That Kansas City, Missouri, is, and at all times named in plaintiff’s petition was, a municipal corporation organized and existing by virtue of the special charter framed by it for its own government under section 16 of article 9 of the Constitution of the State of Missouri.
“2. That the special taxbill dated December 20, 1898, sued on and consisting of the four installments thereof copied in plaintiff’s petition, was is'sued to plaintiff in part payment for the paving of Washington street from the north line of Tenth street to the center line of Ninth street in said city, under and pursuant to the proceedings hereinafter recited.
“3. On June 17, 1898, the board of public works of said city unanimously recommended to the common council of said city that Washington street in said city from the ndrth line of Tenth street to the center line of Ninth street be paved as a business street and that payment therefor be made in special taxbills, and in
í c c Trinidad Lake asphalt on concrete to be laid according to detail “3” of asphalt pavement approved by said board August 11, 1896, and on file in the office of said board.
“ ‘Bermudez, 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, so modified, as to allow the use of one and one-half inches of wearing surface and one and one-half inches of binder course.
“ ‘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, so modified as to allow the usé of the Portland cement grout instead of Murphy grout filler as therein specified.
“ ‘Vitrified brick, as manufactured by the Kansas City Vitrified Brick Company, the Pittsburg, Kansas, Vitrified Brick Company, or any other vitrified brick equally as goqd as those designated, on concrete to be laid according to detail “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 pavement approved by said board July 19,1892, and on file in the office of said board.’
“5. It was further provided and required in said ordinance that, the contract for the work herein authorized shall guarantee that the same shall be constructed with such materials and in such manner that the same shall endure without the need of any repairs for a period of five years from and after its completion and acceptance without further compensation than that provided for in .the contract for the first cost of such work and for which the said special taxbills are issued.
“7. The record of proceedings of the board of public works of August 19, 1898, states that a ‘petition selecting Trinidad Lake asphalt as the material with which Washington street from Ninth street to Tenth street shall be paved as a business street, as provided by ordinance No. 10074, was filed.’ And among the files of said board is a petition marked filed by or with said board August 19, 1898, and which petition purports to be a selection of Trinidad Lake asphalt as the material with which said part of said street at a cost of hot to exceed $2.25 per squane yard shall be paved, with the following clause: ‘maintenance ten years,’ also added thereto, and the persons whose names are signed thereto are declared by the certificate of the members of the board of public works endorsed thereon, to be owners of a majority in front feet of the lands fronting on Washington street from the north line of Tenth street to the center line of Ninth street owned by residents of said city.
“8. The record of the proceedings of the board of public works of August 26, 1898, states that ‘the property-owners on said street having by a petition representing a majority of front feet of real estate owned by residents of Kansas City and fronting on said part of said street, selected Trinidad Lake asphalt to be laid according to detail “ 3 ” of asphalt pavement as the material with which said part of such street shall be paved, the board of public works in addition to such selection of material by the property-owners hereby se
“9. That detail ‘3’ of asphalt pavement aforesaid approved August 11, 1896, also on October 27, 1896, by the board of public works of said city and on file in the office of said board referred to, but not set forth, in said ordinance No. 10074, reads as follows:
“ ‘Detail 3. The pavement shall consist of a Trinidad Lake asphalt wearing surface one and one-half (11-2) inches thick upon a base of bituminous concrete binder one and one-half (11-2) inches thick which base shall be laid upon a concrete foundation. The concrete foundation already in place shall be cleaned and any defects therein made good, when sufficient- new hydraulic cement concrete or cement mortar shall be laid to bring the concrete surface parallel with and three inches below the finished surface of the pavement. Upon this foundation shall be placed a binder course one and one-half (1 1-2) inches thick and upon this binder course a wearing surface of Trinidad Lake asphalt one and one-half (1 1-2) inches thick. The binder course and wearing surface to be prepared and laid as specified for detail “1.” ’
“10. That detail No. 1 of said board of public works’ specifications referred to in above quotation from detail ‘3’ in the preceding paragraph, reads as follows:
“ ‘Detail 1. The pavement shall consist of an asphalt wearing surface one and one-half (1 1-2) inches thick laid upon abase of bituminous concrete binder one and one-half (11-2) inches thickwhich base shall belaid upon a hydraulic cement concrete foundation five inches thick. The streets shall be excavated to the required depth, all soft or spongy ground shall be re
“ ‘Upon this subgrade shall be placed a layer of hydraulic cement concrete not less than five inches thick when tamped.
“ ‘Upon this base shall be placed a binder course of bituminous concrete composed of clean broken stone not exceeding one and one-half (1 1-2) inches in their greatest dimension and an asphaltic cement, the parts to be thoroughly heated and mixed by machinery in the proportions of not less than fifteen gallons of asphaltic cement to one cubic yard of broken stone. The binder coursé shall be spread hot upon the concrete foundation with irons and rakes and immediately rammed and rolled to a uniform thickness of one and one-half inches.
“ ‘Upon this binder course there shall be placed a wearing surface composed of:
. “ ‘First, refined Trinidad Lake asphalt. Second, heavy petroleum oil. Third, clean fine sand. Fourth, pulverized carbonate of lime.
“ ‘An asphaltic cement shall be formed by melting and mixing the asphalt and petroleum oil in the proportions by weight of one hundred parts of pure asphalt to from fifteen to twenty parts of petroleum oil. The asphaltic cement thus prepared shall be mixed with the other materials in the following proportions: Asphaltic cement, from twelve to fifteen per cent; sand, from eighty-three to seventy per cent; pulverized carbonite of lime, from five (5) to fifteen per cent. The asphaltic cement and sand shall be heated separately to about three hundred degrees Fah. The carbonate of lime shall be mixed with the hot sand and sufficient asphaltic cement at the required temperature shall be added to effect a perfect mixture. *
“ ‘The mixing thus prepared shall be spread upon the base at a temperature of about two hundred and
“11. That the recommendation of the board of public works and city ordinance aforesaid, each purport to be action under section 2 of article 9 of the charter of Kansas City, Missouri, and as a pavement upon a business street, though none of said part of Washington street was then used or occupied for business purposes.
“ ‘Wherefore, defendants ask judgment and for their costs.”
Counsel for appellant does not urge any error as applicable to the second count.
The third count in the answer, by reference, adopts the allegations of the first count, and urges as a defense that the selection of Trinidad Lake asphalt was not only in violation of section 2 of article 9, but also section 12 of article 17 of the Kansas City charter requiring contracts for such work to be let to the lowest and best bidder.
The fourth count of the answer alleges substantially that the respondent Paving Company since 1891 (7 years preceding any suggestion for the work in question) had a monopoly of asphalt street pavement in Kansas City under the Trinidad Lake asphalt specification. That the board of public works, the common council and mayor of Kansas City, and the residents owning a majority in frontage of abutting lands, knew of such monopoly, when they respectively designated, selected and specified Trinidad Lake asphalt for the street pavement in question. That to establish a large asphalt street paving business in said city and prevent competition therein, the respondent Paving Company
The fifth count adopts the allegation in the preceding counts and charges that the selection of the Trinidad Lake asphalt was due to and the result of a conspiracy, and was violative of section 1 of the acts of Congress of the United States, entitled, “An act to protect trade and commerce against unlawful restraint and monopolies,” approved July 2, 1890.
The sixth count of the answer, after adopting the allegations in the preceding counts, charges that the respondent attempted to monopolize and did monopolize a part of the trade and commerce among the several States and with foreign nations, contrary to section 3 of the act of Congress heretofore referred to.
The trial court, after sustaining the objection to the introduction of any evidence upon the answer filed, defendants refusing or declining to plead further or asking leave to amend their answer, rendered judgment for the plaintiff upon the taxbills in suit. Prom this judgment defendants prosecute their appeal.
OPINION.
It is manifest from the record in this case that the appellants have with commendable frankness alleged in the first count of their answer in detail every step taken by the municipal authorities in the construction of the work of the street improvement involved in this controversy. • It is, therefore, apparent that whatever defenses may be urged to the enforcement of the special taxbills in suit, must arise upon this true and correct statement of the record of the city council and board of public works as detailed in the first count of the answer of the appellants. If the preliminary steps taken by'the city in the construction of the work contemplated by the street improvement as shown by the record, as detailed in the first count of the answer by appellants, is violative of any of the provisions of the charter of Kansas City, then such count constitutes a good defense to the cause of action alleged in the petition. If on the other hand the allegations in the answer show a substantial compliance with the provisions of the charter providing for such street improvement, then it states no defense, and the action of the court in sustaining the objection of the plaintiff was proper.
The provisions of the charter applicable to the
“Provided, further, however, that if the board of public worts shall unanimously recommend to the common council that any business street, alley, avenue, public highway or part thereof, be paved, repaved, blocked, rebloeked, graveled, regraveled, macadamized or remacadamized, and the pavement thereof is to be made in special táxbills, and the common council shall, by ordinance, order such work to be done by á 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, avenue, alley, public highway or part thereof to be improved, shall have the right to select the material with which such street, alley, avenue, public highway or part thereof shall be paved, repaved, blocked, reblocked, graveled, regraveled, macadamized or remacadamized from not less than two lands of material 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 in writing, 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, alley, avenue, public highway or part thereof shall be improved. ’ ’
It will be observed that under this charter provis
It is clear, and it is so alleged in the answer of the defendants, that the board of public works on June 17, 1898, recommended certain street improvements upon Washington street in Kansas City, and designated more than two kinds of material with which this street should be paved. It is also apparent that the property-owners qualified by the charter to do so, selected the material for the street improvement, and that the board of public works designated the same material for that purpose that the property-owners had selected, and a pavement of the character so selected was duly contracted for and constructed. And there is no pretense that the work was not done in strict accord with the terms of the contract. All of these facts affirmatively appear in the first count of the answer of the defendants; hence these particular allegations in the answer can afford no defense to this action, for they show a substantial compliance with the provisions of the charter. In fact, it is apparent from the reply brief by appellants now before us that they do not claim that there was any failure to designate more than two kinds of material for the street improvement, but their objection is bottomed entirely upon the designation of a particular kind of asphalt, that is to say, Trinidad Lake asphalt.
The main contention of appellants in respect to
An analysis of the contention of the appellants just quoted results simply in this, that the board of public works was unauthorized to designate Trinidad Lake asphalt as the kind of material to be used for the street improvement, and that its designation of that
The proposition so earnestly and ably presented by counsel for appellant is by no means a new one. It has been in judgment before this court in prior cases involving the same question as is here presented, and responding to the contentions urged in those cases, this court, after'a full and careful consideration of this important and sharply-disputed proposition, finally settled it, and we are now -unwilling and have no disposition to disturb the conclusions reached upon it. [Verdin v. St. Louis, 131 Mo. 26; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22; Swift v. St. Louis, 180 Mo. 80.] "While the writer of this opinion, as an original proposition, did not fully concur in the views expressed in the majority opinion in Swift v. St. Louis, supra, nor in the conclusions in the cases cited in support of it, yet I feel that where contracts have been made upon the faith of decisions of the highest tribunal in the State, and property rights acquired, there should be a full and proper recognition of the rule of stare decisis and the conclusions reached by the courts upon the propositions accepted ' as the law governing and con trolling such transactions.
In this case it fully appears from the allegations in the first count of the. answer of the defendants, that the board of public works designated more than two kinds of material to be used in the construction of the work for the street improvement — one of the kinds of material designated was Trinidad Lake asphalt, and other kinds, such as vitrified brick and gravel or sand
We shall not undertake in this case to indulge in a review of all the authorities cited in which the right of the municipal authorities to make these designations and selections is challenged, but must be content with a reference to those cases as heretofore indicated, which finally settled this proposition. That the municipal authorities of Kansas City, acting in pursuance to the charter provisions, may designate the material with which a street shall be paved, was fully recognized' by the Supreme Court of the United States in Field v. Barber Asphalt Paving Co., 194 U. S. 618. The law upon this proposition is nowhere more clearly and tersely stated than in that case. In discussing the very question here presented, as to the right of the municipal authorities to select Trinidad Lake asphalt, the court in that case said: ‘ ‘ The right to provide for this paving was vested by the Missouri statute in the board of aldermen. The right to select the material for the paving was vested in that body; they saw fit to choose Trinidad Lake asphalt for the paving. Their right so to do, under the charter powers of such cities as West-port, notwithstanding competitive biddings is thereby rendered impossible, has been sustained by the Supreme Court of Missouri. [Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22; Warren v. Paving Co., 115 Mo. 572; Verdin v. St. Louis, 131 Mo. 26.] With the wisdom of this choice the courts have nothing to do.” To the same effect is Swift v. St. Louis, supra. In that case, Gantt, J., in treating this proposition, ' said: “This court approved the Trinidad Lake asphalt specification in the Verdin case, because the monopoly therein resulted from the ownership of the whole natural supply
It is urged by learned counsel for appellants that the municipal authorities did not designate a kind of material, but only a species of kind based upon mere locality of the material designated. It may be, by “ringing the changes on words and phrases,” that the distinction made by counsel is correct, yet we are'unwilling to say that, in the plain and ordinary acceptation of terms, the naming of Trinidad Lake asphalt was not a designation of a “kind of material.” That it was the designation of a “kind of material” was so treated by the municipal authorities and is fully recognized in the adjudicated cases herein cited. "We repeat, that the allegations in the first .count of the answer of appellants show a substantial compliance with the provisions of the Kansas City charter, and therefore constitutes no defense to this action.
What we have said in respect to the first count is equally applicable to the third count of the answer— hence the same conclusions result as to that count, as herein announced as applicable to the first.
As to the fourth count in the answer, we have reproduced substantially the allegations made by the defendants, and after a careful analysis of them, there is no escape from the conclusion that they consist simply of general expressions and insinuations as to wrongdoing, upon which no issue of fact could be joined. The defense sought to be made by this count in
The business of lobbying as indicated by the charge of the appellants in this count of the answer, is by no means to be commended by this court. Lobbying, which goes to the extent of improperly and illegally influencing the actions of legislative bodies or official acts, is properly condemned by all right thinking people, but in this case we are dealing with a legal proposition, and to afford relief from the results of the acts by municipal authorities, by reason of improper and illegal influences exercised by lobbying, mere general expressions or insinuations do not meet the require
Counsel for appellants insist that the rule announced in Nagel v. Railroad, supra, does not. support the action of the court in the case at bar, for the reason that a demurrer was interposed to the pleadings. We are unable to draw any distinction where in the one a demurrer is sustained because there is no cause of action stated, and in the other where there is a refusal on the part of the court to hear proof because there are no facts alleged constituting a cause of action. In the Nagel case it will he noted that it was said that, “Without the allegation of the specific act or acts which constitute the fraud, the pleadings should he stricken out upon motion.” The fourth count in defendants’ answer fails to state any defense to the cause of action in suit.
It is ' unnecessary to pursue this subject further. The fifth, sixth, and seventh counts of the answer predicate defenses to this action upon this view of the case: First — That the acts of the municipal authorities was the result of a conspiracy between the respondent and board of public works, and that the designation of the asphalt to he used in the street paving was in restraint of trade and commerce among the several States and with foreign nations, hence was violative of the acts of Congress to protect trade and commerce against un
As to the defenses sought to he interposed hy the counts last referred to, it is .sufficient to say that they were fully met in the case of Field v. Barber Asphalt Paving Co., 194 U. S. 618. It was expressly held in that case that the specification of the kind of asphalt as designated in the case at bar by the municipal authorities of Kansas City, was not violative of the acts of Congress or the provisions of the Constitution referred to in the answer of the defendants. The conclusions of Mr. Justice Day, applicable to this proposition, are thus clearly stated: “In the present case it may be that the use of this kind of asphalt, under municipal authority conferred by the State, will in a limited degree affect interstate commerce, but it certainly is not one of those direct interferences with the power over and express control of the subject given by the Constitution to Congress. In this day of multiplied means of intercourse between the States there is scarcely any contract which cannot in a limited or remote degree be said to affect interstate commerce. But it is only direct interferences with the freedom of such commerce that bring the case within the exclusive domain of Federal legislation. The attempt to invoke the provisions of the Sherman Act in this case is equally unavailing. The act has been recently considered in the Northern Securities cases, decided at this term, and its construction and the nature of the remedies under it determined. It is not intended to affect contracts which have a remote and indirect bearing upon commerce between the States. [Hopkins v. United States, 171 U. S. 578; Addyston Pipe Co. v. United States, 175 U. S. 211.]”
There was no error in the action of the trial court in sustaining the objection of respondent to the introduction of any testimony upon the allegations con