Monaghan v. City of Indianapolis
| Decision Date | 08 December 1905 |
| Docket Number | 5,761 |
| Citation | 76 N.E. 424,37 Ind.App. 280 |
| Parties | MONAGHAN v. CITY OF INDIANAPOLIS ET AL |
| Court | Indiana Appellate Court |
Dissenting opinion January 5, 1906. Transfer denied February 2, 1906.
From Superior Court of Marion County (69,271); James M. Leathers Judge.
Suit by John Monaghan against the City of Indianapolis and others. From a decree for defendants, plaintiff appeals.
Reversed.
J. E Bell, for appellant.
Henry Warrum, Edward E. Raub, F. Winter and Elliott, Elliott & Littleton, for appellees.
John R. Wilson and William A. Ketcham, amici curiae.
Suit by appellant, an abutting property owner, to enjoin the letting of a contract for a street improvement.
The complaint avers that the city's board of public works adopted a resolution for the improvement of the street by paving with brick; that afterward, upon the petition of a majority of the resident freeholders on the street sought to be improved, the resolution, plans and specifications were modified so as to provide Warren's patent bitulithic pavement. The resolution, modification and detailed specifications are set out in the complaint. It is also averred that all the steps preliminary to the letting of the contract have been duly taken; that the board advertised for bids, and threatens to and will, unless enjoined, let the contract and have the work done, to the irreparable injury of appellant. It is further averred that the pavement specified is a patented pavement covered by letters patent of the United States; that there can be no competition in such work, and that an unlawful monopoly is necessarily created by making such improvement with a patented pavement; that there was no necessity for its selection by the board, for the reason that there are many other as good and durable modern first-class accepted pavements not covered by patent, and not controlled by any monopoly; that the cost of the improvement will be greatly increased by the use of such patented pavement, and appellant's property assessed for more than it will be if competition is had.
Appellees answered, alleging that the resolution was modified upon the petition of a majority of the property owners; that the pavement in question is one of the accepted modern city pavements, and has been laid in many cities of this and other states; that its cost is approximately the same as other bituminous or asphalt pavements, and practically no more; that the specifications call the attention of bidders to the fact that the city engineer will furnish, upon request, to any bidder, a copy of a proposal from the company owning the patent, stating at what price it will furnish the same. A copy of this proposal or agreement is made a part of the answer, and, among other things, provides that the company agrees It is further alleged that competition in bidding is thus provided; that appellees are informed and believe and allege that competitive bids will be submitted for the improvement; that they have the right to have the street improved with a patented pavement, even though there could be no competition. A demurrer to this answer was overruled, and, upon appellant's refusal to plead further, judgment was rendered in appellees' favor.
Section ninety-five of the act of March 6, 1905 (Acts 1905, pp. 219, 281, § 3519 Burns 1905), provides: "Such board shall * * * let such contract to the lowest and best bidder." Section 107 of said act (Acts 1905, pp. 219, 286, § 3531 Burns 1905) provides:
(1) The question presented by the complaint may be briefly stated thus: Does an improvement which is covered by letters patent permit the competition provided for by section ninety-five, supra? If this question is answered in the affirmative, it is unnecessary to consider any question raised by the answer, for the reason that if there may be competitive bidding for a pavement covered by letters patent, the complaint is bad.
The complaint alleges that the bitulithic pavement in question is a patented pavement covered by letters patent of the United States. From the nature of letters patent the presumption prevails, until the contrary is shown, that the patentee has the exclusive right to make and use, and sell to others to be used, the thing patented during the term for which the exclusive right is granted. "Letters patent," said the court in Seymour v. Osborne (1870), 78 U.S. 516, 11 Wall. 516, 20 L.Ed. 33, "are not to be regarded as monopolies, created by the executive authority at the expense and to the prejudice of all the community except the persons therein named as patentees, but as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein mentioned, the exclusive right and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit, as contemplated by the Constitution and sanctioned by the laws of congress."
If it is proposed to put down a patented pavement, and the patentee has "the exclusive right and liberty to make and use and vend to others to be used" this patented pavement--and under the above definition of a patent this is the case made by the complaint--we fail to see any reasoning upon which to base the statement that there could be competitive bidding as required by the statute. If the patentee controls and retains absolutely the right to use and to sell to others the patented article, so long as he retains this right there could be no competitive bidding for a contract to use the patented article.
In all the legislation in this State since 1852 touching street improvements, provision has always been made for competitive bidding. From 1852 to 1891 the contract was to be let to the "best bidder," and from 1891 to 1905 to "the lowest and best bidder." The one important fact has been kept in view through all this legislation--that competition is safe and is in the interest of the property owner. The legislature has delegated to the municipality, through its board of public works, the power to charge the property of individuals with the expense of the improvement, and it has been held time and again that the steps to be taken in fixing this assessment are mandatory and are to be strictly pursued. The property owner may insist upon the observance of every requirement that will in the least tend to protection. "'It is, however, the duty of the courts to resolve doubts against the validity of the exercise of the authority wherever there is any substantial deviation at all, and to sustain proceedings in cases where there is not an exact compliance with the statute only when it clearly and unmistakably appears that no possible injury has resulted to the landowner, or could result to him.'" Wickwire v. City of Elkhart (1896), 144 Ind. 305, 43 N.E. 216. See, also, City of Bluffton v. Miller (1904), 33 Ind.App. 521, 70 N.E. 989, and cases cited.
It is quite true it will be presumed that public officers will do their duty, and let it be presumed that if there is but one bid, and it is exorbitant or unreasonable, the board will reject it. But it is not a question of good faith or bad faith, or the exercise of a sound discretion, on the part of the municipal officers. It is simply a question of power. What does the statute say they shall do, and have they done it? It is true, as argued, that the statute safeguards the property owners and municipality in various ways;--by stipulating that no contract shall be let which shall be more than ten per cent in excess of the engineer's estimate nor where the total cost exceeds fifty per cent of the aggregate value of the property as it is assessed for taxation, and the right of the board to reject any and...
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