Stocking v. Warren Bros.

The following opinion was filed January 8, 1908: Winslow, C. J. It will be seen from the foregoing statement of the provisions of the special charter of the city of Superior that the evident intent is that all public work involving the expenditure of any considerable amount of money shall be open to full and free-competition and shall be performed by the lowest satisfactory and responsible bidder. In this respect the charter is quite similar to the general city charter, as well as to many, if not most, of the special city charters still existing. It seems equally evident that the reasons for this requirement are that it was thought that by this means the danger of extravagant contracts would be lessened and the opportunity for making corrupt or collusive contracts with favored contractors would be practically [241] eliminated. These reasons manifestly apply with greater force where the work is to be paid for either in whole or in part out of assessments against private property specially benefited by the improvement. The first question presented in the present case is whether there has been any such competition as the charter contemplates. The appellant claims that the charter may be properly construed as calling simply for competition between two or more different plans or processes, neither of which is definitely adopted until after the bids are received, while the respondents claim that it can only be construed as calling for competition between bidders upon one plan or process which has previously been definitely determined upon by the city council. In Ricketson v. Milwaukee, 105 Wis. 591, 81 N. W. 864, a somewhat similar question was presented under a charter provision substantially like the one before us. There the city council, without adopting definite plans or specifications, called for bids for the erection of a garbage crematory upon certain city lots with sufficient capacity for the incineration of 100 tons of garbage per day to be delivered in scows at the dock in front of the plant. A number of bids were received, each specifying a plant of essentially different construction, and one of these bids was accepted, and a general taxpayer brought his action to enjoin the carrying out of the contract. The contract was held void because no plans and specifications had been adopted by the council prior to the call for bids. The absolute necessity of such action was in that case assumed as self-evident under the charter, and it was said that, by reason of the failure to adopt plans and specifications, no proper basis for bidding had been secured, and, further, that “no one could tell which was the lowest bid because no two would be on the same basis. That fact alone condemns the action taken.” The present case does not present the precise question which was there met, because four sets of [242] plans and specifications, each calling for a different pavement, were bere placed on file before bids were called for, so that a bidder on any one of the different plans was fully informed as to tbe basis upon which, he was bidding, and there would be competition between two bidders who bid on the same plan. But would there be any competition between the man who bid on the brick pavement and the man who bid on the sandstone block ? They would not bid on the same basis any more than two bidders in the Riclcetson Case who bid on differently constructed plants. If, in order to determine which of two bids is the lowest, the bidders must bid on the same basis, as held in the Riclcetson Case, then plainly it could not be determined here which was the lowest bidder as between two men bidding for the construction of different kinds of pavement. After all, however, the question is one of the reasonable and natural construction of the provisions of the city charter. Turning to the charter and remembering that the dominant purpose is to secure full and complete competition between bidders, let us examine its provisions and see whether they will admit of the construction contended for by the appellant. Sec. 63 provides that, “before proposals are advertised for, a profile or plan of the worlc to be done, together with the specifications, shall be placed on file in the office of the board of public works for the inspection of bidders, and a form of contract as the same will be required to be executed by bidders” shall be prepared and furnished to any prospective bidder. Sec. 127, which is specially applicable to street or paving contracts, provides that “when any of the works before mentioned shall have been ordered to be done and the plans for the same containing a description of the work, the material to be used, and such other matters as will give an intelligent idea of the work required, shall have been filed in the office of the board of public works, where the same caa\ be inspected by persons desiring to bid on such work,” bids may be advertised for. [243] Tbe wording of both of these sections seems to ns not only to contemplate, but to definitely require, that tbe specific work to be done, as well as tbe plans for that work, shall be determined in advance of tbe advertisement for bids. When any work shall have been ordered to be done and tbe plans therefor containing a description of tbe work, the material to be used, and other matters necessary to give an intelligent idea of tbe work have been filed, then, and not till then, may bids be advertised for. Can it be rationally said that any specific work was ordered to be done here before bids were solicited and received? Is a resolution to tbe effect that a street be paved with sandstone blocks, brick, creosoted blocks, or bitulithic macadam a determination that it be paved with any definite pavement or that it be paved at all? Under sec. 127 tbe work must first have been ordered to be done. What work has been ordered to be done or what material to be used by such a resolution as this ? Certainly, if tbe legislature intended to provide for a competition between different plans and processes as well as a competition between bidders upon tbe same plan or process, they used apt language to conceal rather than to reveal such intention. We are unable to gather any such meaning or intent from tbe sections quoted. On tbe other band they seem to us clearly to express in no uncertain or doubtful language tbe requirement that a definite work done in a definite way, with definite materials, must first be determined on by tbe council, that tbe plans and specifications for this work must be filed, and that the bids received must be competitive bids on tbe basis of tbe definite work so ordered and described in tbe plans and specifications on file. In no other way can there -be true competition between them all, and in no other way can there be in tbe full and complete sense any lowest bidder. This conclusion upon tbe initial question in tbe case relieves us from tbe consideration of the second question, which was much debated upon tbe argument and which will be briefly stated. - The respondents claimed that, even if it should be held [244] that appellant’s construction of the charter was right on the question already discussed, still the contract would be void under the authority of Dean v. Charlton, 23 Wis. 590, and Allen v. Milwaukee, 128 Wis. 678, 106 N. W. 1099, because the bitulithic pavement manufactured by the appellant is made by patented processes. The appellant met this argument not only by the claim that there had in fact been full competition, but also by the claim that, if the charter be construed as prohibiting the city from purchasing a patented article, it would invade the constitution of the United States and the patent laws, which protect a patentee in the exclusive right to sell his patented article anywhere in the United States, subject only to reasonable regulation by the states in the exercise of the police power. As before indicated, we find it unnecessary to consider this question on account of the conclusion reached on the first question, which necessarily calls for affirmance of the judgment. By the Court. — Judgment affirmed. Bashfobd, J., took no part.