East Oregonian : E.O. (Pendleton, OR) 1888-current, 1913-07-03

est the place to be improved. having
the best equipment, having the best |
and having capital to pur-
chase what the public demands, al
ways has. an advantage which en-
ables him in a sense, to monopolize |
contracts of this character.
THE law requires the city coun-
ell to designate in advance and in the |
first instance the character and
kind of Improvement to be made, and
il was its duty TO choose that which, |
under all the circumstances it !
thought the most suitable. There is |
nothing to indicate that it acted frau
or that it did not choose the |
best; and, in the absence of any great
number of litigants protesting here,
we have the right to assume that
great majority of the ratepayers got
what they wanted and are satisfied. 1t
is not shown that anybody else sought
to take advantage of the situation by
proposing to the Warren Brothers
company to install a plant in Pendle-
ton for the manufacture of gravel
bitulithic pavement, nor that anybody
ever applied to it to furnish the ma
terial to perform the contract in case
they should see fit to bid upon it, This
is not a case where the patentee of an
article is himself contractor for its
use in a particular instance. The evil
dence discloses no more than that the
pavement selected is covered by a pat
ent the benefits of which are avail
able to every contractor upon the
same terms. If the. use of patented
articles. compounds. and machinery
are to be excluded from all contracts
let to the lowest bidder. then munich
palties are relegated to the outworn
agencies and materials of a past gen.
Grafton. and are unable to avail them
selves of the discoveries and improve
ments of the present. =
I'm the absence of proof to the con-
trarv we are bound to assume that the
council of Pendleton acted in good
faith and with good judgment, and
that gravel bitulthic" was the best
pavement for use on Jackson street
at is not shown in this case that
any other pavement is equal to gravel
bitulithic. that the cost of the pave
ment was excessive, nor that anybody
was prevented from bidding by rea-
son of the fact that the compound was
covered by patents. From all that
appears the plaintiff has a good pave
ment. put down at reasonable price,
ani has suffered no actual injury by
reason of the selection of the pave
ment in question. He stands simply
on the bare technical objection that
the selection of patented compound,
as matter of law has a tendency to
create monopoly, and that therefore
he cannot be compelled to pay for
the Improvement 1t is very evident
that the objection now raised is an
afterthought which either did not oc-
cur to him before the work was COM
pleted or was suppressed. 1t is also
evident that the plaintiffs real objec-
ton is not that the council of Pen
dleton has done something to foster
monopoly, but that it has improved
the street at all. In it's final analysis
plaintiffs contention amounts to this:
The city council may determine the
kind of improvement to be made, but
must carefully exclude any patented
improvement; or it must, at least,
make its selection in the alternative.
IF it were shown that there were
other pavements of similar charac-
ter and equally as good, the sugges-
ton might have some force: but that
fact does not appear in the testimony
in this case. 1t is difficult to see how
such a course could prevent favorit-
ism from being shown in the selection
of material or in the awarding of con-
tracts. A dishonest council could just
as easily select the material specified
by a bidder whom it wished to favor
after the bids were in as it could be-
fore they were called for. Suppose
the council had called for bids for
half dozen different kinds of pave
ment retaining the right to select that
one which in it's judgment was the
best. 1t is plain that if it were so dis
posed it could have selected gravel
bitulithic, and the plaintiff would
have been without remedy. In this
contention we are conceding for the
purpose of the argument, without so
deciding, that such alternative notice
would comply with the terms of the
| charter, which required the council
to determine in advance of the notice
for bids the kind and character of
the improvement. There has been no
device yet invented that is sufficient
tC make a dishonest official act hon
estly; the remedy is at the polls. In
these days when the light of publicity
Is thrown upon every act of a coun-
Gilman, when the Jail doors yawn be-
fore the grating official, and the re-
call hovers over him, there Is not that
temptation for him to ply his voca-
tion that there has been heretofore.
In this particular case there is no
charge made of Intentional fraud on
the part of the council They COM
piled with the letter of the law and
as we believe, with the spirit of It,.
Whether they exercised the very best
judgment is not for us to say
Another objection is that the no.
tice of intention to improve does not
describe definitely the portion of the
street to be improved.
There is a discrepancy in the descrip-
ton arising from the fact that block
c, Livermore's Addition. is wrongly
designated as Block g.. All the mon
uments called for in block as they
appear in the ordinance and notice ex-
ist in block 6, and the courses called
for also correspond; but as no dist
ances are given we cannot reverse the
description beginning at the last call
and retrace ii so as to make the
/ IL 4. L..