The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-06-13
IS CREMATORY
CONTRACT VALID
The Fact That Furnace Is Pat
ented Article Raises Cues
ton of Legality.
MANY RULINGS ELSEWHERE
CITY FATHERS ARE SCRATCHING
HEADS OVER THE MATTER.

Considerable discussion has been
aroused of late as to whether the con-
tract awarded to the Dixon Engineer
ing company of Cleveland, O., for the
construction of an addition to the ere
matory at a cost of $3.50 is legal, in
view OF the act passed by the last leg
islature prohibiting the adoption of
plans and specification by any mu-
nicipal corporation which require the
exclusive use of any patented article.
That the letting of the contract to
the company was a technical evasion of
the law no one doubts, as the article
furnished is covered by a patent, but
so are all crematory furnaces. and in
order to build the addition it was abso-
lutely necessary to find some way to
avoid the law, which reads as follows:
mo city, town or municipal corpora
ton shall adopt plans and specifica-
tons for any public Improvement
which require the exclusive use of any
patented article or process, or any ar
ticle or process protected by any trade
mark, or any article or process wholly
controlled by any person. firm or COR
poration or combination thereof"
The usual procedure in letting con-
tracts is for the engineer to prepare
plans and specifications to submit to
the bidders. In this case the law was
evaded by advertising for bids for the
construction of the required addition
to the crematory. and asking that the
contractors submit their own plans and
specifications.
Even this procedure has been taken
by some to be illegal, but the rulings
of courts throughout the country on
this point, while not uniform, seem to
hold that ii is within the power of a
municipal corporation to adopt this
method when legislation of the charac-
ter described appears on the statute
books
a case in point is that of Kiivington
VS.. Superior, So Wisconsin, 222. Here
the contract was for the erection of a
patent crematory and, in this respect,
Identical with the local situation The
contract was let TO the lowest bidder
under the same plan as followed by
the local board of public works The
court held that as there was free COM
petition for the work and materials
and all else except the patent, the city
had the benefit of ali the competition
of which the nature of the work admit
ted and the contract was sustained.
The General Ruling.
This. however, seems to be the only
case which the Wisconsin courts have
determined in this way, and the cir
cCmstances probably governed the rul-
ing, as the general principle of that
court has always been that such statu-
tory requirement puts it out of the
power of municipalities to call for bids
or specifications for a patented article
or one which is under the control of one
firm or corporation and. therefore, does
not admit of cOmpefitiOn
This rule is followed in many states,
but the Michigan rule which is much
more liberal, seems to be generally &C
cepted by the courts throughout the
country as the most rational course to
follow. This doctrine is, that the fact
of an article being patented and there
fore obtainable only from the pat
entee. takes it outside of the statute
and does not prevent the municipality
from using it without putting it into
competition with other articles. pat
ented or unpatented. The question if
and under what conditions. an intend
ing bidder can obtain the use of the
patent is also one which has weighed
with the courts. and in Illinois it has
been held in the case of Siegel vs. Chi
cago, 20 Northwestern Reporter. $50,
that written proposition submitted TO
the board of public works by the man.
al to furnish it to any contractor bid
ding on the work at a fixed price was
without significance and did not obvi-
ate the objection as to want of COM
petition.
Other Cases.
The Indiana supreme court i'm an
oberta dicta in a case similar to the
Illinois case just cited, has held in 70
Northwestern Reporter, 424 that the
scheme worked here is not within the
meaning of the statute. in that the use
of patented article could be contract
ed for, providing the specifications were
50 wOrded that they did not indicate
the manner in which the work should
be done or the specific article to be
furnished but left the whole matter to
the bidders.
In cases where several patented ar
ticles have been put in competition the
general rule is that the contract can
be let, notwithstanding the statute. In
fact. the courts seem TO hold that the
statutes are intended to promote COM
petition and that whenever it can be
shown that competition has been freely
allowed the contract will be viIad.
In Perrin c. & p. Co. VS.. Quacken-
bush, 104 California, 6S4, the court held
that the specifications for paving with
rock did not confine bidders
to- one patented process nor exclude
processes not patented. In Mulrein VS..
81 California 500. specifications
for lathing San Francisco's CITY hall
called for either Carriers patent lathing
or some other description of lathing of