St. Louis Quarry & Construction Co. v. Frost

BLAND, P. J. I. -Under the provisions of the charter of the city of St. Louis, after a street has been constructed, the expense of keeping it in repair must be borne by the city and the whole of the cost of such repairs be charged against the general revenue of the city. The cost of construction or reconstruction is by the same instrument charged to the abutting property-owners; if, therefore, the contract and ordinance-, requiring the contractor to keep the street in repair [688] for one year after its reconstruction was completed, shifted the burden of keeping the street in repair for one year, from the city to the abutting property-owners, the ordinance and contract are void as opposed to the charter. In Asphalt Paving Company v. Ullman, 137 Mo. l. c. 566, speaking of a- contract made under a like charter and ordinance the Supreme Court, through Barclay, J., said, “The ‘guarantee’ of the pavement for five years, as laid by the plaintiff, involves no extra charge against the adjoining property, further than would be justly payable for a lasting pavement. The terms for keeping the agreed work in repair, free of cost, is no longer than the reasonable period such a work should last, if properly done at the outset It certainly is proper for the city to require of the contractor for such improvements a sound and durable piece of .finished work. The agreement to maintain the work free of cost for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.” This ruling was approved and followed in Bank v. Woesten, 147 Mo. 467; Barber Asphalt Paving Co. v. Hezel, 76 Mo. App. 135; s. c., 155 Mo. 891. These authorities effectually dispose of appellant’s first special defense. II. Ordinance No. 18960, passed after the passage of the special ordinance providing for the reconstruction of Carr street, should not have been incorporated in the contract, but as it was made a part of the contract and the contractor observed its provisions, it was material to inquire, on the trial, whether or not its requirements, that all the stone used should be dressed in the territorial limits of the State of Missouri, tended to restrict competition in the letting of the work or to increase the cost of the work. There is no evidence in the record that the letting of the work was influenced by the ordinance or that any contractor did not bid who would have bid had there been no such ordinance. In respect to the cost [689] of the work, the evidence tends to show, and the court found, that it was not increased for the reason that the stone was cut in the territorial limits of this State. The charter (section 27, article 6) has for its object the protection of the property-owner in securing untrammeled and unrestricted competition in the letting of street construction work, and any ordinance, that does .restrict the letting 'or by other restrictions increases the cost of the material rr labor for doing the work, is obnoxious to the charter. In St. Louis Quarry & Construction Co. v. Von Versen, 81 Mo. App. 519, this very ordinance was condemned because the evidence showed that in that case the requirement of the ordinance, that the stone should be cut in the territorial limit? of the State of Missouri, did increase the cost of the work. The same result was followed in this case but for the fact that the evidence shows that the ordinance had no such effect-either in restricting bidding or increasing the cost of the construction. It is hardly competent for a court, as a matter of law, as appellant insists should be done, to pronounce void every ordinance that enters into a contract for this character of work because it contains restrictions on the contractor in respect to the class or quality of the material to be used, or as to the manner of its preparation for use, or the skill to be employed in its preparation and use, or as to the territory from which it is to be drawn, or in which it is to be prepared, provided the territory is broad enough" not to restrict competition. Eor, while such restrictions may appear to prevent competition, the facts may show that they have no such effect, but on the contrary that the restrictions in the particular case tended to cheapen the work rather than to increase its cost and to stimulate rather than to restrict competition. Seemingly ordinance No. 18960 conflicts with the ehar [690] ter, but as to this particular piece of work, under the evidence and finding of the court, there was no conflict. It had no influence on the letting and did not increase the cost of tlie work. The appellants were not injured by it and it would be highly unjust to relieve, them of their charter obligation to pay their just proportion of the cost of the work simply because ordinance No. 18960 was incorporated in the contract when the work cost them no more than if it had been left out. III. The depositing of the two hundred dollars by the contractor was but an additional security for the quality of the work. It was a safe and reasonable provision, and under the evidence did not in the least increase the cost of the work. IV. The ordinance requiring the contractor to restrict-the hours of labor of its employees to eight hours per day, is not an unreasonable ordinance, on the contrary it is in accord with the law of the State (sec. 8136, R. S. 1899), with enlightened sentiment, and the trend of modern legislation elsewhere. That it has no influence whatever on the cost of the work is shown by the fact that in this character of work laborers are paid by the hour, and stone cutters and pavers by the square. The declarations of law given by the court were as favorable to appellant as they should have been. We discover no reversible error in the record. The judgment seemsi to be for the right party and is affirmed. Judges Goode and Barclay concur.