Saunders v. Iowa City

• Decision Date: 11 April 1907
• Citation: 111 N.W. 529,134 Iowa 132
• Parties: SAUNDERS v. IOWA CITY ET AL.
• Court: Iowa Supreme Court

134 Iowa 132

111 N.W. 529

SAUNDERS

v.IOWA CITY ET AL.

Supreme Court of Iowa.

April 11, 1907.

Appeal from District Court, Johnson County; O. A. Byington, Judge.

Suit in equity to enjoin defendants from making certain improvements by paving a street in defendant city, from letting a contract for said paving to defendant Horrabin, and from assessing the cost of said improvement to abutting property owners. The trial court dismissed the petition, and plaintiff appeals. Affirmed.Baldwin & Fairchild and Read & Read, for appellant.

W. J. McDonald, Bailey & Murphy, and M. J. Wade, for appellees.

DEEMER, J.

The question of paving what is known as “Iowa Avenue” in the city of Iowa City became a matter of public concern, and the city council of that city undertook an investigation as to the best material to be used for that purpose. Pursuant thereto it instructed its engineer to make an investigation, and as a result thereof he recommended the use of what is known as “Bitulithic pavement.” Brick was discarded for various reasons which need not be enumerated, and this left nothing but asphalt or bitulithic for use in improving the street. After the engineer had made his report a majority of the owners of property abutting upon the street petitioned the city council, asking it to curb and pave the thoroughfare, and recommended that the bitulithic pavement be used. Plaintiff, however, did not join in this petition. Pursuant to the petition the council passed a resolution for the pavement of the street, and directed its civil engineer to prepare plans and specifications for the work, and the city clerk was authorized to advertise for bids for paving the avenue with Warren Bros.' bitulithic pavement. This was done, but before any bids were received the Warren Bros. Company filed with the city council the following statement: “To the Mayor and City Council, Iowa City, Iowa. Gentlemen: Inasmuch as it is deemed advisable by the proper authorities that certain streets in the city of Iowa City, state of Iowa, should be improved with Warren's bitulithic pavement, and inasmuch as the construction of said pavement requires the use of certain patented processes and compounds, and inasmuch as competitive bidding in the letting of contracts for street improvements is deemed advisable, in order to provide for such competitive bidding, and at the same time secure the adoption of Warren's bitulithic pavement as the kind of pavement to be constructed in such streets as may hereafter be determined, the undersigned, Warren Bros. Company, as owners of all patents and processes covering the laying of said bitulithic pavements, hereby propose and agree for the consideration hereafter named to furnish to any bidder to whom a contract may be awarded to pave any street or streets in the city of Iowa City with Warren's bitulithic pavement, and who shall enter into a contract with such surety or sureties as may be required by said city of Iowa City, the following materials ready for use, coupled with a free license to use any or all patents owned, or which may hereafter be owned by Warren Bros. Company, necessary to lay said pavement: (1) The necessary roadway mixture of the wearing surface having a thickness of two (2) inches after compression, prepared under the patented process of Warren Bros. Company, and delivered hot in the wagons of the contractor and the bitulithic mixing plant located in the city of Iowa City. (2) The right to use any and all patents owned or controlled by Warren Bros. Company, which are necessary to be used in the laying of such pavement. (3) The bituminous flush coating cement and stone chips for coating the wearing surface delivered on wagons of the contractor at the bitulithic mixing plant located as above. (4) We will also furnish to the successful bidder, or to the city, at our expense, an expert who will give proper advice as to the building of such pavement. (5) We will make at least two examinations daily at our laboratory of the mixtures as delivered on the street to see if uniformity has been accomplished in the mixture and construction, and make reports thereon to the proper city authorities, said samples to be sent prepaid to the laboratory of Warren Bros. Company, Potter street, East Cambridge, Mass., by the city or contractor. The price at which this service is offered to any and all contractors who make a bid on Warren's bitulithic pavement in the city of Iowa City, state of Iowa, is $1.45 per square yard of finished pavement. Respectfully submitted, Warren Bros. Company, Albert C. Warren, Vice President.” This statement was dated May 15th, but was not filed, as we understand it, until May 26, 1905. The time fixed for hearing objections to the resolution for paving was May 5, 1905, and before that date plaintiff and others filed protests against the improvements, which were finally overruled on May 5th, and at that time the resolution to pave with the bitulithic substance was passed. Pursuant to the advertisement for bids, six were filed, ranging from $1.96 to $2.16 per square yard. The bid of the Barber Asphalt Paving Company being the lowest, it was awarded the contract on June 23, 1905. By the terms of that contract the asphalt company was to begin work within 15 days after the agreement became binding. As the Barber Company did not comply with this part of the contract, it was canceled on July 14, 1905, and the clerk was directed to readvertise for bids. This was done, and at the time fixed for the receipt of the second bids three were received ranging from $1.98 to $2.20 per square yard. Defendant Horrabin being the lowest bidder the contract was awarded to him, August 16, 1905. Thereafter the time given him for commencing the work was extended to August 16, 1906.

This action to enjoin defendant city and its council from entering into a contract with Horrabin and to declare any contract made with him void and for other purposes was commenced in July of the year 1905. Both the contract with the Barber Asphalt Company and with Horrabin provided that the paving be laid with Warren Bros.' bitulithic pavement, to be purchased from Warren Bros. Company, and mixed with Warren's Puritan brand No. 21 bituminous waterproof cement or bituminous cement, the wearing surface to be spread with Warren's quickdrying bituminous flush coat composition; and the contract with Horrabin also contained these provisions: “The several sizes of stone thus separated by the screen sections shall pass into a bin containing six sections or compartments. From this bin the stone shall be drawn into a weight box resting on a scale having seven beams, the stone from each bin shall be accurately weighed in the proposition which has been previously determined by laboratory tests to give the best results, that is, the most dense mixture of mineral aggregate, and one having inherent stability. From the weight bin each batch of mineral aggregate, composed of differing sizes accurately weighed as above, shall pass into a ‘twin plug’ or other approved form of mixer. To this mixture shall be added a sufficient quantity of Warren's Puritan brand No. 21 bituminous water-proof cement, or bitulithic cement, to thoroughly coat all the particles. After rolling the wearing surface, there shall be spread over it while it is still warm a thin coating of Warren's quick-drying bituminous flush-coat composition, by making a suitable flush coat spreading machine. * * * As a condition precedent to the acceptance by the council of the work done under the contract, it is hereby stipulated and agreed that Warren Bros. Company must file with the city clerk a statement duly attested, setting forth the fact that they, the Warren Bros. Company, have furnished the contractor with a full and sufficient amount of the proper bituminous compounds and mixtures for properly building the amount of paving constructed under this contract; that they have made laboratory tests of the stone used in the bitulithic mixtures, and have given instructions to the contractor with reference to the mixing of stone and bituminous cement; that they have examined from time to time the mixture as it was prepared to be placed on the street; that they have exercised a general supervision over the bituminous construction of the pavement, and believe that the work has been well done and to their satisfaction; and that they have no claims against the city of Iowa City for furnishing such material, rendering such services, or the use of any patented device, process, or compound.”

As will be observed the action was commenced before the contract with Horrabin was let, and the letting of the contract, as well as the making of the improvement and the making of any assessment for the cost thereof, is sought to be enjoined, and the cancellation of the contract is also asked. Appellant relies on the following propositions: “(1) The defendant city was and is without jurisdiction or power to make the improvement in controversy, or to let the contract in controversy, or to assess any part of the cost of the improvement to abutting property, for the reason that the statute of Iowa and the ordinance of the defendant city are mandatory in requiring competition, and there was and could be no competition in the letting in controversy. (2) The defendant city was and is without power or jurisdiction to improve the street in question by paving with Warren Bros. bitulithic pavement, or to let the contract in controversy therefor, or to assess the cost of the improvement to abutting property, for the reason that the pavement specified was a patented process, the manufacture and laying of which was controlled by the letters patent, owned exclusively by the Warren Bros. Company, and therefore there was and could be no competition in the letting of said improvement as required by the statute and ordinances regulating the same.”

It is conceded that the Warren Bros.' bitulithic pavement is a...