The Evening statesman. [volume] (Walla Walla, Wash.) 1903-1910, 1905-10-12
pavement favored or suppressed COM

pavement favored or suppressed COM
petition.
The question has never been passed
on by the supreme court of this state.
Dillon in his work on municipal cor
porations, section 46S, lays down the
rule as follows: CAS- the purpose Of
such a provision in the charter is TO
secure, through competition. the most
advantageous terms, something is ne
cessarily left to the discretion, to be
fairly exercised, of course, of the coun-
ell, in the adoption of the course which
will best attain the end; and it does
not contravene this restriction to call
for bids putting down various kinds of
wood and stone pavements, some pat
ented and some not, and afterwards
when all the proposals are in, selecting
the one which is relatively the lowest
or the most satisfactory, all things
considered" Which seems the most
sensible rule, but as to stating with
certainty what the supreme court Of
this state would say, no one can do so.
AS to the question as to whether
the ordinance calling for bids for only
Warren's bitulithic pavement is valid
the supreme court of Michigan speak
ing by Judge Cooley in the case Of Ho
bart VS.. Detroit. II Mich, 246. has held
that under the law which provides that
no contract shall be made by the city
except with the lowest bidder, after ad-
vertisement Of proposals, the city is
not prohibited from contracting to lay
Nicholson pavement, although the
right to lay it is patented, and owned
by a single firm which was the only
bidder, while the supreme court of
Wisconsin in the case of Dean vs.
Chalton %, Wis. sol, has held that
where city was empowered by the
charter to improve streets at the ex-
pense of the adjoining lot owners and
was required to let all such work to the
lowest bidder it could not contract for
laying a pavement at the expense of
such lot owners, the right to lay which
was patented and owned by one firm.
The supreme court of Michigan is
sustained by the case of Yarnold VS..
City of Lawrence, Is Kansas 1875, a
case involving Wichoff patented pave
ment, and in re Dugro so New York, a
Nicholson pavement case, and the SUI
preme court of Wisconsin is sustained
by the decisions of the supreme court
of California in the Nicholson Pave
ment VS.. Painter, 35 Cal, 500; Burgess
VS.. City of Jefferson, Fl Louisiana. 142.
Judge Dillon in his work on municipal
corporations section 467 uses the fol-
lowing language; THE supreme court
of Michigan has affirmed while the
supreme court of Wisconsin and of
other states denied the proposition
that where a city charter provides
that no contract shall be made by the
city, except with the lowest bidder it
does not prohibit the corporation from
contracting to lay Nicholson pave
ment, although the right to lay it is
patented and owned by a single firm.
The question is close but there seems
fofo RI no q
tendency in the courts to adopt the
Wisconsin view"
touching upon this subject at the time
Judge Dillon had expressed the opin-
ion above quoted. Since scuh time,
however the court Of appeals of New
York has reached a different conclu-
the so New York, above cited. In the
case of Smith VS.. Syracuse Implement
Cimpany, decided January 9, 1900, SIS
New York, page 1877, that court holds
that a city has no right to limit the
bids to one kind of pavement which is
patented. The court of appeals of
Kentucky in the case Of Fineran VS..
Central Bitulithic Pavement Company,
decided Oct 81, 1893, rs South Western,
Ais, has held this action to be void.
The supreme court of Illinois in the
case of Fishburn VS. Chicago, 40 North
Eastern 542 has reached the same con-
clusion The Ohio circuit court in the
case of Tucker VS.. City Of Newark, 19
Ohio Circuit Court Reporter, page 1,
mas affirmed the illegality of this pro-
ceeding, and we find no other cases up
holding the supreme court of Michigan
in it's conclusion that such proceed
ing is valid.
The California case, however, was
decided upon further ground which IS
especially applicable to the provisions
of our charter. The majority frontage
under the charter of San Francisco
are given a certain time within which
they may elect to take the contract OH
c,,ooncof111 hid.