The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-06-13
THE USE OF KREODONE
c. A. KENYON WILL FILE An OPINION
By BYRON n. ELLIOTT.
Latter Does Not Believe IL Is n Bar
TO COmDetition-OtherM Municipal
Matters of Interest.

Clarence A. Kenyon. Of the Hoosier Con-
structien Company, will file with the Board
OF Public Works this morning an opinion
By former Judge Byron X. Elliott or the
specifications OF the city for wooden block
paVements. The company OF which Mr..
Kenyon is president was notified by resi-
dent property owners Of Michigan street,
between Noble and Pogue's run, that they
would resist payment OF the assessments
against them on the ground that they were
Illegal. as the specifications did not admit
OF competition. Dir. Kenyon has addressed
a letter 10 the signers OF this notice asking
them 10 furnish the same bond that he fur
nished 10 the city that they will reimburse
him for any loss in case ne is penalized ny
the board and he will stop work at once.
The company has not desisted work. The
opinion from Mr.. Elliott follows:
In response to your request for our opin-
ion as 20 the effect OF the validity OF the
clause in the specifications adopted BY the
city Of Indianapolis for creosoted wooden
block pavements. referring to the creosote
Gil 10 be used, We respectfully submit the
following:
The specification provides that wooden
blocks shall be treated with heavy creOsote
oil, Of the grades known as kreodone or
republic creOsOte paving OIL and that
contractors must submit samples of the
kind Of creOsoted wooden blocks TO be used
and a sample OF the creosOte oil Upon its
face this provision regarding the creOsote
oil 20 be used Is not, in our opinion. invalid,
even IL IL could be construed as requiring
the use OF kreOdOne, the standard or cri
terion. We assume, however, that but one
company manufactures and prepares kreo-
done creosOte oil. We understand the facts
10 be that all contractors can purchase
kreOdone at regular rates, or, rather. can
have blocks treated with il at regular rates
rDgfA 81 - II
practice OF the municipal authorities, under
such specifications, to admit and consider
all bids otherwise complying with the spec
1hcauons, although the oil submitted by the
bidder Is not technically kreodone. In other
words. kreodone IS simply the standard
and the board will admit any heavy creo-
sote oil OF the same grade or quality as
When this clause In the specifications is
construed in the light of the facts just
stated and according 10 well-settled rules
of law. firmly of the opinion that
the matter is left open 10 competitive bid
ding and that kreodone or republic paving
oil Is merely made the standard so that
any other oil of the same grade or quality
and equally as good may compete with it
on equal terms.
Indeed. we think this may be fairly
said TO be the natural and ordinary mean
Ing OF the words used. The ordinary mean
ing Of the word grade, as stated by the
photographers. Is quality, rank. stand
ing. and, as said in the Standard Diction-
airy, grade implies some regular scale of
valuation and some inherent qualities for
which person or thing is placed higher
lower In the scale, as the coarser and
finer grades OF wool Ii has been express
" decided by the courts, as we'll stated
by the leXicogra piers that grade does not
mean kind but does mean quality. The
clause IN question, then, means heavy
ereosote oil, as the quality known as
lxreodone or republic paving oil, that is the
standard. and the oil must grade up TO it.
IT would be impra ctical, if not impossible,
10 satisfactorily TX the standard of such a
complicated product as creosote oil in any
other way than by taking some well-known
oil the standard and by comparison de-
termining whether the oil submitted is OF
the same grade. As was said in the case
quality may be well and generally under
stood by some particular name which has
been given to the material. and in such
case the simple name by which it is called
would indicate its standard and quality
better and more intelligently than some
elaborate and analytical description
The object of the statute requiring the
contracts 10 be let TO the lowest and best
bidder. If satisfactory. IS doubtless TO en-
courage competition in ordinary cases, and
thus give the property owner or public the
benefit thereof. The board. however, has
considerable discretion in the matter. 1t
NAV reject all bids or, within its discre-
the lowest bidder. IL il deems that the ma
terial of the lowest bidder Is not so good
as the others. or for other good reasons
deems that his bid is not the best. taking
into consideration other proper matters as
well as the amount of the bid. Ryan VS.
Mayor. etc, 80 Att Rep. 5S7. AS is stated
in this case. il is the right OF a municipal
body 10 select and have such quality OF
material they, In the honest exercise
of the discretion vested in them, may re-
ouire, and "a City Council will not be re-
quired by. the court TO speculate with an
uncertain material, even If IL costs less
especially when II appears that from an
other quality Of similar material they are
assured OF pavement of the quality and
standard required.
The object is 10 give the public the bene-
1T OF the best pavement they can get and
the great weight Of authority is 10 the eff
feet that even under a statute providing
Tor competitive bidding the city may pre-
scribe patented process. Here how
ever, we are not required to go so far, for
the reasons above stated.
Even IL there were a monopoly so far
as kreodone IS concerned, that would not
necessarily affect the contract between the
city and contractors. The specifications
certainly do not require or even contem-
plate that the manufacturer or seller OF
kreodone shall do the work. On the con-
1rary. the door Is open to all contractors
on the same terms. They can all obtain
blocks treated with kreodone, and il makes
no difference whether IL can only be OBJ
tanned from one source or not.
Our conclusion is that the specifications
in question do not limit the bids TO kreo-
OF creosote OIL and that there is no viola.
ton OF the statute In the existing specifica-
tons"
RIGHT To CERTAIN LAND.