Rackliffe-Gibson Construction Co. v. George Belle Walker

Missouri Court of Appeals

Rackliffe-Gibson Construction Co. v. George Belle Walker

156 S.W. 65, 170 Mo. App. 69, 1913 Mo. App. LEXIS 305

Missouri Court of Appeals·Decided April 21, 1913·Published

Opinion

ELLISON, J.

Plaintiff’s, action is on a special tax bill issued for work on a street in the city of St. Joseph. • The judgment was for the plaintiff.

Defendants insist that the bill is void from the fact that the ordinance authorizing the work provided for concrete pavement known and designated as “Has-sam Pavement,” to the use of which plaintiff had the exclusive right; and that therefore no competition or competitive bidding could be had as required by the charter of St. Joseph. In support of this contention it cites Curtice v. Schmidt, 202 Mo. 703, 722-727; Schoenberg v. Field, 95 Mo. App. 241.

But the “Hassám Pavement” is a patented article and the authorities just cited are not applicable, since while they assert the necessity for open specifications and competition in public work in order to validate tax bills, they except patented articles. In Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22, the Supreme Cou6rt upheld the right of cities to provide for the use of patented articles, and that case has been cited with approval since. [Swift v. City of St. Louis, 180 Mo. 80.] Curtice v. Schmidt, supra, does not overrule Barber Asphalt Pav. Co. v. Hunt, supra. Such is the understanding, as shown in Custer v. City of Springfield, [71]*71167 Mo. App. 354, 151 S. W. 759; Paving Co. v. McLord, 145 Mo. App. 141. The Supreme Court, judging from expressions in different opinions, have upheld the Hnnt case with some regret, feeling constrained on the ground that stare decisis and investments on the faith of that case have made it necessary.

It follows that the bills are not void, and the judgment of the circuit court must be affirmed.

All concur.

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ELLISON, J.

Plaintiff’s, action is on a special tax bill issued for work on a street in the city of St. Joseph. • The judgment was for the plaintiff.

Defendants insist that the bill is void from the fact that the ordinance authorizing the work provided for concrete pavement known and designated as “Has-sam Pavement,” to the use of which plaintiff had the exclusive right; and that therefore no competition or competitive bidding could be had as required by the charter of St. Joseph. In support of this contention it cites Curtice v. Schmidt, 202 Mo. 703, 722-727; Schoenberg v. Field, 95 Mo. App. 241.

But the “Hassám Pavement” is a patented article and the authorities just cited are not applicable, since while they assert the necessity for open specifications and competition in public work in order to validate tax bills, they except patented articles. In Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22, the Supreme Cou6rt upheld the right of cities to provide for the use of patented articles, and that case has been cited with approval since. [Swift v. City of St. Louis, 180 Mo. 80.] Curtice v. Schmidt, supra, does not overrule Barber Asphalt Pav. Co. v. Hunt, supra. Such is the understanding, as shown in Custer v. City of Springfield, [71]*71167 Mo. App. 354, 151 S. W. 759; Paving Co. v. McLord, 145 Mo. App. 141. The Supreme Court, judging from expressions in different opinions, have upheld the Hnnt case with some regret, feeling constrained on the ground that stare decisis and investments on the faith of that case have made it necessary.

It follows that the bills are not void, and the judgment of the circuit court must be affirmed.

All concur.

Rackliffe-Gibson Construction Co. v. George Belle Walker, 156 S.W. 65, 170 Mo. App. 69, 1913 Mo. App. LEXIS 305 (Mo. Ct. App. 1913).

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Opinion

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