Lacoste v. City of New Orleans

• Decision Date: 21 June 1907
• Docket Number: 16,610
• Citation: 44 So. 267,119 La. 469
• Court: Louisiana Supreme Court
• Parties: LACOSTE v. CITY OF NEW ORLEANS et al

44 So. 267

119 La. 469

LACOSTE v. CITY OF NEW ORLEANS et al

No. 16,610

Supreme Court of Louisiana

June 21, 1907

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by Alexander B. Lacoste against the city of New Orleans and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Cage Baldwin & Crabites, for appellant.

Henry Garland Dupre, Asst. City Atty., and Samuel Louis Gilmore City Atty., for appellee the city of New Orleans.

James Clark Henriques, for appellee the Southern Bitulithic Company.

Thomas Jones Cross, City Atty. of the city of Baton Rouge, amicus curiae.

Ruffin Golson Pleasant, City Atty. of the city of Shreveport, amicus curiae. Denegre & Blair, amici curiae.

OPINION

PROVOSTY J.

The charter of the city of New Orleans requires that all of the contracts of the city for an amount exceeding $ 500 shall be let to the lowest responsible bidder after advertisement, with right to reject any and all bids. By the same charter, when the property owners along a street are to share in the expense of paving the street, they have the right to determine "the character or quality of said pavement." The property owners along Dumaine street, in said city, petitioned the council for the paving of said street, and chose the "bitulithic" pavement. After regular advertisement, etc., the city let the contract to the Southern Bitulithic Company; it being the lowest bidder. "Bitulithic" is the name of a particular kind of pavement of the invention of Warren Bros., of Boston, Mass., and accordingly the city authorities, in advertising and awarding the contract, framed the specifications in such way as to necessitate the use of the processes and materials pertaining to said invention. The evidence shows that there is no other way of laying "bitulithic" pavement or any so-called "bitulithic" pavement. These processes and materials are protected by letters patent; and this has led the plaintiff, a property owner on said street, to bring the present suit enjoining the carrying out of the contract, on the ground that it was let without competition, because it calls for the use of patented processes and materials. To obviate that very objection, and to put all competitors for the contract on an equal footing, the patentees had filed with the city a document in which they agreed to let the successful bidder have the use of their patents, and to furnish expert inspectors to see that the materials were prepared, and the pavement laid according to formula, for 25 cents per square yard.

The question presented is whether an agreement of that kind makes competition possible.

The evidence shows that it secures to all prospective bidders for the contract the use of the patents in question upon payment of 25 cents royalty. The argument of the learned amicus curiae to the contrary is founded upon a misconception of the proven facts.

Where such a document is filed, therefore, all prospective bidders are placed on the same footing, and the situation is precisely the same as if a patented process did not have to be used, except that 25 cents per yard additional must be figured into the cost of fulfilling the contract. But all competitors are under the same necessity of making this addition to their estimate, and hence no inequality is created.

Having to pay this royalty could prevent full and fair competition only if thereby inequality were created between the competitors; and it is argued that inequality is thereby created because the patentee does not have to pay that royalty to himself, and may therefore, either in his own name or through some alter ego, underbid his competitors. But that argument is merely specious. To the patentee, as to all other bidders, the sole inducement to bid on the contract is the margin of profit which he thinks he sees in it; and no more for him than for anyone else does his...