Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1910-05-21
PHONE 1872.

II new pavement Is required. or de.
Gliding whether paving is likely to
be better than the matchmaking to
which the public Ia accustomed pre-
sents no judicial question. -
The plaintiff submits that select
ing patented pavement obtainablc
from only one source is against the
policy OF the statute which is in
tended to prevent graft or favori-
item and that In order to accom-
plish this object the requirement OF
competitive bids implies prohibition
of such selections; and that the least
that ought to be required is that a
patented pavement obtainable from
only one source ought not to be con-
traeted for, unless IL is shown that
other equally good pavement is not
obtainable by advertising for compe-
ting offers. The plaintiffs conten-
ton that until bids are called for no
one can say that agents elsewhere
would not offer the patented pave
ment at a lower price than Is asked
by the local agent Gilman was ex-
pressly withdrawn in his brief in
reply and in argument.
/ There is limit beyond which ar
bitrary exercise OF power can not be
avoided, and this Is recognized by
the exception In the statute from
competition In respect of claims or
: objects "for which a fixed sum or
sums must be paid by law" The
expenditures "for other purposes
which do not admit OF competition"
not being for sums OF money fixed
by law or ascertainable by means Of
competitive bids must be determined
by the reasonable exercise of dis
erection on the part of the board of
supervisors, for how otherwise can
they be determined? We are not
authorized to declare that there can
be 10 expenditures for street paving
or that no patented pavement can be
' purchased unless It's owner has
agents ready to underbid each other
In selling II. To declare such doc 3.
trine Of law on the ground that II IL
public policy to prevent discretion
airy expenditures would obviously be
to iglore the statute which contem
plates such expenditures and would
be an unwarranted assumption of
judicial power. For the necessity or
propriety of expenditures which do
+, not admit OF competition there can
be no rule Of law other than that OF
common honesty and Intelligence. To
submit the municipality to unneces-
sary or exorbitant expenses for street
paving or for any other purpose
points to the dreary graft and cor
ruption abuses Of which municipal
'government appears to be so often
susceptible, and we are glad to OBJ
serve that the plaintiffs attorneys
say that they do not claim nor in
fer there to be the slightest suspi-
cion In this instance" of graft or
fayoritism. When case of fraud is
presented there will be no difficulty
In obtaining an injunction from
court of equity, but this is not such
a case. ~ 3.
| Referring again to the meaning Of
the statute. 1t is purpose not ad-
hitting OF competition II, as in this
case. the desired material is obtain.
able from no other person than the
patentee's agent who alone can apply
1t to the required use. But the i'm
possibility of obtaining this pavement
from any one else than from Gilman,
the sole agent for Its sale In this Ter.
ritory. Is evident and to advertise for
f, competing bids from other agents,
whether within or without the Terri.
tory, would not only be useless but
absurd. s. f. .r
Consideration then OF the statute
and of the facts In the case leads to
the conclusion that the proposed OK.
pendlture under the paving contract is
Tor a purpose which does not admit
OF competition"
Against the plaintiffs citations of
decisions upon construction OF stat.
utes to render them effective for their
intended object and that statutory
t'~fessNhhShs ~ ls0hhpotihb Viub
eddy prohibits the use Of patented
pavement the defendants cite cases to
the effect that courts have no power
to enjoin the use by a municipality of
patented street pavements although
obtainable only from the patentee or
his agent. s,s
In the cases cited upon the right OF
a municipal corporation under statutes
requiring competitive bids to use a
patented pavement securing to the pat.
entee monopoly the courts reach dl.
rectly opposite conclusions upon the
principle involved but have no occa.
sion to consider the effect OF statu.
tory provision like our own which ex.
cepts expenditures for purposes which
do not admit OF competition.
The following cases illustrate the
opposing views Of general statutes up
on the subject: Contract valid with.
out advertisement Hobart v. Detroit,
IL Mich. 246; In re Dugro, so N. Y.
| IaI,. A q