This action was instituted by taxpayers. The result sought is a writ of injunction to prevent the defendants, the officers of the State Highway Commission, from approving bids and executing contracts for furnishing materials and performing labor incident to a state highway project of paving roads. The specifications upon which the bids are *Page 118 based, by indirection and description, limit the source of a material needed, "blended rock asphalt," to one place or mine (a pit located near Dougherty, Okla.), which place or mine is owned and controlled by one producer, the Southern Rock Asphalt Company.
The descriptions and designations contained in the specifications prepared by the State Highway Commission which bring about the restriction of the source of said material are:
(1) Requirement of a blended or mixed road material of which the elements are limestone and sandstone, naturally impregnated with asphaltic oil ("which material is not a standard road material as distinguished from other rock asphalt * * *").
(2) Requirement that the "sand rock asphalt and lime rock asphalt shall be blended while being crushed at the place of manufacture; all rock asphalts shall be used as mined with no preparation, other than blending, crushing, grinding and pulverizing," and "no fluxing material nor hard asphalt shall be added to bring the bitumen content within the specified limits."
It is alleged that the required blending at the pits serves no useful purpose in creating suitable rock asphalt, but that road construction would be equally if not better served through use of limestone or sand rock alone, mixed with proper proportions of liquid asphalt, and the result of such mixed materials is an asphaltic road building material of the same nature and ingredients as the so-called "blended rock asphalt," but of a superior quality, but that the submitted specifications requiring the use and blending in a plant located a long distance from the road project will entail the unnecessary expenditure of thousands of dollars in the payment of freight for transportation of rock and sand which is available in the vicinity of the road project.
(3) That the requirement that "a special crusher and pulverizer" shall be used in crushing the stone is indefinite and unreasonable and is calculated to confuse bidders and prevent free bidding.
(4) That "the rock asphalt for this item shall be material obtained from deposits which for a period of two years have been producing rock asphalt laid in pavement giving satisfactory service when blended in the general manner prescribed herein," that this requirement will confine, and limit the source of material to the one mine so owned in the vicinity of Dougherty, Okla.
It is alleged that the unavoidable effect of said "special provisions" and specifications is to create a perfect monopoly in the furnishing of the blended output of the lime rock and sand rock pits operated by the Southern Rock Asphalt Company for road construction in Oklahoma. That the said specifications limit the asphaltic material to be used in the construction of said highway as definitely as if the same specifically required such production to be mined and mixed at the pits of the said Southern Rock Asphalt Company, in that no other pits anywhere other than the said pits meet said requirements.
That the actual cost of the product — the so-called "blended rock asphalt" — will not exceed $1.75 per ton, f. o. b. cars at Dougherty, Okla., but that all purchasers, other than favored ones, are required to pay to said corporation the sum of $4.25, f. o. b. at Dougherty, whereby the said corporation is enabled to influence and control bidding and to actually fix without competition the sale price of its product. That the profit of said corporation is approximately $2 per ton, or more than 120 per cent. That the average freight charge for transportation of said material to the road projects is $2.05 per ton, but that the asphaltic road material similar and superior to the so-called "blended rock asphalt" and of the highest grade can be furnished for construction of the road projects herein involved, and is being furnished for construction of similar road projects throughout the United States at a price not in excess of $3.25 per ton, delivered; that with an alternate use of standard asphaltic material in the construction of the projects here involved, a saving will be had in the cost of such road materials in the approximate amount of $59,000; that defendants in adopting and promulgating same, (specifications) were guilty of flagrant violation of their official duty, and of sound discretion, and committed what in effect is a legal fraud upon the right of the plaintiffs and all other citizens of the state of Oklahoma.
Other appropriate allegations relating to relief were incorporated in the petition.
At the outset, it is fitting and proper that we as judges examine the rules of law by which our judgment will be moulded. If our measure or working tools are to be limited by a rule of strict construction or extended by a rule of liberal construction, we should be not only conscious of the fact, but also we should be aware of the underlying reason for the rule.
The majority opinion applies to the procedure, *Page 119 whereby such contracts are let by the State Highway Commission, a rule of liberal construction, and bases it on ample funds provided and broad powers vested. It is said:
"It seems beyond question that with such authority reposed in the Highway Commission, the rule of liberal construction should be applied. * * *"
But the majority would apply to a rule of strict construction where the cost is to be paid from special assessments. It is said:
"It must be true that the power of officers of the city in letting construction contracts where the cost is to be paid from special assessments would be far more restricted. * * *"
I am inclined to the view that if rules of construction are to be applied, exactly the converse of that stated by the majority should obtain. Because, under our law relating to paving in cities, the owners of real property benefited by the improvement may petition for the improvement, and thus initiate the movement, or they may protest and remove their property from the district improved; in any event they pay the bill and they should have voice in designating the particular material to be used. Whereas the State Highway Commission is already possessed of broad powers under the law, and there is no need to broaden these powers vested by a rule of liberal construction. Moreover, they deal with "other people's money," the funds belonging to the public, and as a consequence there is more need for circumspection as applied to these mere agents and servants of the people. The majority opinion relies upon the rules stated in other jurisdictions without an analysis of the reason for the rule. But Mr. Justice Brewer states this reason in Yarnold v. City of Lawrence (1875) 15 Kan. 126, after pointing out that the right of a city to avail itself of patent inventions in the improvement of streets, where the law required the letting of contracts to the lowest bidder, has been denied in Wisconsin, California, and Louisiana, and sustained in Michigan and New York; with meticulous care that great jurist showed that in Wisconsin and California special provision is made for securing to the lot owners the privilege of doing the work themselves — a privilege the courts consider of no value if the contemplated improvement is covered by a patent, and can only be made by the patentee, or such person as he chooses to permit. With us there is no such special provision relating to paving in cities, whereby the property owner may do or cause to be done his own work, within a given period of time, and upon failure so to do the city may let a contract for construction of the improvement, as pertains to the case of sidewalks. Consequently there is no need for rules of construction relating to paving roadways whether liberal or strict, and withal courts should adopt such rules to warp their judgment only "cum grano salis."
The majority opinion cites Smith v. Syracuse Imp. Co. (N.Y.)55 N.E. 1077, a special assessment case involving vitrified brick manufactured by the New York Brick Paving Company, a common article not patented, but the subject of a complete monopoly by reason of the restrictive specifications, wherein the court held the proceedings void in that "it did not permit of free competition," for "while competition was to a certain extent allowed in this case, namely, as to the work required in paving the street, it was not allowed to the extent required by the statute, which contemplates a full and free competition in all things, inasmuch as competition in the price of paving brick was sought to be prevented," for by restricting the material to one producer, the New York Brick Paving Company, the specifications necessarily allowed that corporation to practically "fix its own price for brick to be used in the work," whereas "vitrified brick for paving purposes is a common article of manufacture and sale," and it is a "well-known fact that many corporations manufacture and sell vitrified brick for paving purposes equal in quality to the best brick made by the said New York Brick Paving Company." In view of this case it was said by the majority:
"It seems certain that at least in a special assessment case the authorities could not specify a paving product on the general market, manufactured by several competing persons, and specify that the product of only one, calling him by name, should be used in the construction work."
If this is a sound decision, and since rules of construction should not hedge our judgment, why should it not be applied in the case at bar? The evil condemned by the decision is monopoly — the counterpart of lack of competition in the bids in so far as the contract embraced the furnishing of materials common in use and not patented.
The majority, like the Court of New York in the cited case, takes judicial notice of the commonality of the article, in these words:
"It is not to be assumed that nature in her great abundance in Oklahoma, has deposited *Page 120 at only one point in the state a deposit of asphalt, sandstone or limestone, in the proportions specified."
But the arbitrary specifications limiting material to that in use for two years last past does that which nature failed to do, to wit, creates an artificial monopoly, and without just reason, for the vagaries of nature are such that no man can tell, without a particular examination, what the next foot of the mine pit will bring forth, nor if the deposit of asphalt continues, in what proportion it will be, whereas if a particular examination is made, a core drill on land other than that possessed by the Southern Asphalt Company will reveal as much and determine the value of the material as well for road construction as it would upon the property of the monopolistic organization that seeks to levy a tribute of more than 120 per cent. upon the present and possibly as much upon the unborn generations of Oklahoma.
Wherefore, I assert that requirement of two years operation of the mine pit is unreasonable and arbitrary.
The majority inquire as to what difference it can make to the bidder where the required material is obtainable, if it in fact is readily obtainable alike to all bidders at a fixed price? Remembering that this is a suit at the instigation of taxpayers, the query might be answered: None at all, but bearing in mind that even as applied to patented articles it is usually required that it affirmatively appear in writing filed with the letting agency that the owner of the legal monopoly agrees to a uniform, stable, fixed price, and a relinquishment of control, the inquiry of the majority assumes facts not in evidence in the case at bar.
Again the majority say:
"It is to be noticed that the petition does not allege that the Highway Commission knowingly specified the use of a construction material of excessive cost to the taxpayer, nor that these specifications were prepared with the corrupt motive of permitting any excessive profit to be realized upon the natural material specified."
But I warn that the result is the same, which is to say, in view of the allegations which we must accept as a verity, that the letting board in this instance was either a knave or a fool, and I recall that mighty dignitaries in this state have been convicted and removed from office under an article embracing the latter, more appropriately Stated as incompetency (or not knowing).
The majority recite the substance of the petition in this regard:
"The petition alleges, in substance, that the price at which the blended rock, asphalt is sold by the producer thereof nets him an excessive profit per ton, and that with transportation cost added the ultimate cost of the roadway will be excessive."
The majority decline to make a distinction between the use of patented products and materials exclusively owned. It is said that:
Such distinction is more fanciful than real; and that if any distinction were made it might more readily favor exclusively owned natural resources or products than patented articles or products, for that the patented article is protected by law, whereas the exclusively owned natural products have no protection in law "and the exclusive character of that ownership may be destroyed any day by discovery of additional such deposits."
Which is to say that a monopoly of common materials is neither protected by law of the state, patent issued by the federal government, nor by nature. Wherefore, the court should afford protection and perpetuity to the parasite that feeds bounteously upon the store of the people's wealth "and eats out their substance."
I can subscribe to no such doctrine. I am oath-bound to the contrary view by the highest of mandates:
"Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed." Section 32, art. 2, Constitution of Oklahoma.
Revocable permit law held void: Oklahoma Natural Gas Corp. v. State, 141 Okla. 80, 284 P. 40; City of Cushing v. Consolidated Gas Utilities Co., 141 Okla. 82, 284 P. 38. See, also, sec. 44, art. 5, Constitution; State v. Cameron Co., 147 Okla. 1,294 P. 104.
I am by faith bound to the contrary expressed in biblical injunction:
"He that withholdeth corn, the people shall curse him; but blessing shall be upon the head of him that selleth it." Proverbs 11-26.
See, also, Amos 8, 4-10; Job 29, 11-17.
The Legislature has defined and condemned combinations in restraint of trade or commerce as monopolies. Chapter 68, art. 1, O. S. 1931. The state of the record here shows a virtual monopoly and affects the community at large as to supply, demand, and price. Therefore, there is no *Page 121 assurance that the Southern Asphalt Company will continue in its present state so as to guarantee price or production for the completion of this project, for, as stated in Oklahoma Portland Cement Co. v. State, 87 Okla. 282, 210 P. 1031:
"The statute, however, does authorize the state to interfere with the distribution of commodities when the same are bought or sold or taken by purchase or sale in such a manner as to constitute a virtual monopoly, or to affect the community at large, as to supply, demand, price, or rate thereof."
See, also, State ex rel. Dabney et al. v. William Cameron Co., Inc., 147 Okla. 1, 294 P. 104.
Section 32, article 2, Constitution, supra, inhibiting monopolies, is said by Judge Williams in his annotated Constitution, at page 50, to be self-executing. We so considered it in City of Okmulgee v. Okmulgee Gas Co.,140 Okla. 88, 282 P. 640, and said:
"* * * The framers of our Constitution held a strong conviction against monopolies and perpetuities and favored encouraging just competition, as shown by clauses, paragraphs and sections of our organic law." (p. 97.)
Therefore, it is obvious that monopolies are odious, contrary to public policy, and unfavored in law and judicial decisions.
"There is a line of cases Which broadly holds that where an article is monopolized, no matter whether legally or not, as under a patent, and the statute provides that work of public improvement shall be lot to the lowest bidder (such as sec. 10095, O. S. 1931, and S. L. 1933, p. 50), such monopolized article cannot be used, for the reason, first, that monopolies are odious in law, and second, because without free competition there is always opportunity for favoritism, fraud, graft, and oppression. The leading case on the subject is Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205. This has been followed in other states. See Siegel v. Chicago, 223 Ill. 428, 79 N.E. 280, 7 Ann. Cas. 104; Monaghan v. City, 75 N.E. 33,37 Ind. App. 280, 76 N.E. 424; Nicolson Pav. Co. v. Painter, 35 Cal. 699; State v. Elizabeth, 35 N.J. Law, 351; Burgess v. City, 21 La. Ann. 143; Fones Hdwe. Co. v. Erb, 54 Ark. 645, 17 S.W. 7, S. L. R. A. 354; Fineran v. Central Co., 76 S.W. 415, 3 Ann. Cas. 741, 116 Ky. 495; Smith v. Syracuse Co., 161 N.Y. 484,55 N.E. 1077; Barber Co. v. Gogreve, 41 La. Ann. 251, 5 So. 853; Diamond v. City, 89 Minn. 48, 93 N.W. 911, 61 L. R. A. 448.
"On the other hand, many courts have held that a statute providing that work shall be let to the lowest bidder does not prejudice the use of patented articles. The leading case on this side of the question is Hobart v. Detroit, 17 Mich. 246, 97 Am. Dec. 185, opinion by Cooley, J. This has been followed in State v. Shawnee County, 57 Kan. 267, 45 P. 616; Holmes v. Council, 120 Mich. 226, 79 N.W. 200, 45 L. R. A. 121, 77 Am. St. Rep. 587; In re Dugro, 50 N.Y. 513; Rhodes v. Board,10 Colo. App. 99, 49 P. 430; Swift v. City, 180 Mo. 808, 79 S.W. 172; Mayor v. Flack, 104 Md. 107, 64 A. 702; Field v. Barber Asphalt Co. (C. C. A.) 117 F. 925 Id., 194 U.S. 618, 24 S.Ct. 784, 48 L.Ed. 1142; Bunker v. City, 74 Kan. 651, 87 P. 884; Bye v. Atlantic City, 73 N.J.L. 402, 64 A. 1056; Mayor v. Bonnell, 57 N.J.L. 424, 31 A. 408; Schuck v. City,186 Pa. 248, 40 A. 310; Mayor, etc., Baltimore v. City of Raymo,68 Md. 569, 13, Atl. 383; Yarnold v. Lawrence, 15 Kan. 126, opinion by Brewer, J; Hastings v. Columbus, 42 Ohio St. 585; Monaghan v. City 37 Ind. App. 280, 76 N.E. 425; Perine v. Quackenbush, 104 Cal. 684, 38 P. 533. * * *
"In each of the leading cases above cited there was a strong dissenting opinion, and in view of the decided conflict in the opinions of able Courts and judges, it is manifest that cogent reasons may be given in support of either conclusion." Hoffman v. Muscatine (Iowa) 232 N.W. 430, 77 A. L. R. 680, at P. 687.
Oklahoma permits the use of patented materials (Reed v. Rockliff-Gibson Const. Co., 25 Okla. 633, 107 P. 168) where an affirmative written showing of uniform price and relinquishment is filed with the city clerk, and the owner of the patented article is not a bidder. But nowhere has our state countenanced an illegal monopoly. I hold there is a vast and valid distinction and that the difference is not fanciful, but real.
In the cited case, Hoffman v. Muscatine, supra, this distinction is made:
"It must be remembered that the monopoly in this case, if one exists, was created by the government. It is not one which is odious in the eye of the law, for it was granted by the public as a stimulus to inventive genius, and to preserve to the individual the fruits of his discovery.
"That thought may be stimulated for the public good, new and useful inventions are patentable, and the discovery is given the exclusive right to use his invention for a limited period of time.
"While there are artificial monopolies which are odious in the eye of the law, it seems clear that one created by the government for the purpose of fostering useful *Page 122 discoveries is not such as courts should discredit."
The converse must also be true. We are dealing not with a monopoly created by the government as in the case of patents, where the law allowing them is available to all alike, nor are we dealing in grants from the sovereign, but with one constructed and countenanced by mere administrative officers whose duty it is under the law to require competition in all such contracts and in each constituent element thereof. Such an artificial monopoly is odious in Mo eye of the law. The Constitution and the statutes do not foster or protect it, and as a consequence the judgment of this court should not lend it favor. Nor protect it. The very statute under which the commission acts requires competition, which is the antithesis of noncompetition, or monopoly.
If the material, or part of it, to be furnished under the proposed contract is monopolized, there cannot, of course, be absolutely free competition. The statute providing for letting of public improvement to the lowest responsible bidder was enacted to secure competition, to prevent fraud and to defeat graft. It was enacted to remove as far as possible all favoritism and to secure the performance of public work at the lowest possible price, which end is shown to be thwarted by allegations in the petition now before us, that the excessive cost by reason of this admitted monopoly is approximately $59,000. If it is countenanced, there is no telling the consequences to the present and future generations.
This is a fraud because:
"Fraud in a court of equity properly includes all acts, omissions, Ind concealments which involve a breach of either a legal or equitable duty, trust or confidence justly reposed and are injurious to another or by which and undue unconscientious advantage is taken of another." Dickinson v. Stevenson,142 Iowa 567, 120 N.W. 324.
Even in the cases of the use of patented articles, competition may be had as required by statute by specifying the use of several materials. This is now required by statutes in many states.
In Kratz v. Allentown (Pa) 115 A. 116, it was held that a municipality had the right to call for stone of a particular quality and fitness, but not from a particular quarry. As otherwise it might create a monopoly and prevent competitive bidding. This rule of law was stated in the fourth paragraph of the syllabus in that case.
The result shown ill the case at bar by the indirection land circumlocution of the proposal is contrary to the rule.
In Lamborn v. Hutton, 132 Kan. 226, 294 P. 676, where the specifications did not designate the machine to be used for compacted concrete pavement, nevertheless, the result required such use, the court, after citing the statute requiring competitive, bidding, said:
"The purpose of these sections of the statute was to prevent graft and fraud in municipal construction work, and they are to be liberally construed."
The court condemned the proceedings, saying:
"To recognize the contract as valid is to open the door to future accomplishment by indirection of results which the Legislature sought to prevent."
Our sister state was adamant. National Surety Co. v. Kansas City H. P. Brick Co., 73 Kan. 196, 84 P. 1034; Pollock v. Kansas City, 87 Kan. 205, 123 P. 985, 42 L. R. A. (N. S.) 465.
Chief Justice Fuller, speaking for the Supreme Court of the United States, in United States v. E. C. Knight Co.,156 U.S. 1 (1895), Va. Law Register, vol. 1, p. 716, 39 L.Ed. 325, makes reference to the meaning of the word "monopoly" at common law, and to the larger significance given to the term in modern times, whereby it is not confined to a grant or commission from the King (or other power), but is applied to other situations relating to buying, selling, making, working, or using of anything whereby anyone is sought to be restrained of any freedom he had before, or is hindered in his lawful trade. The highest court took it as a concession that the existence of a monopoly was established by the evidence.
So that, the distinction between monopolies lawful, as represented by the government grant of letters patent, and a monopoly unlawful and odious in the eye of the law, as represented by materials common in usage and bounteously supplied by nature, is real and recognized as such by respectable authority.
"A monopoly * * * is withdrawing that which is a common right from the community, and vesting it in one or more individuals, to the exclusion of all others. Such monopolies are justly odious, as, they operate not only injuriously to trade, but against the general prosperity of society." Charles River Bridge v. Warren Bridge, but U.S. 420, 9 L.Ed. 773. *Page 123
"Courts of last resort have generally refrained from propounding an authoritative affirmative definition of the 'monopoly' so odious to the common law and to the genius of a free government. It would try the power of expression of most judges, if not of human speech, to frame such a definition outside of which a grant or contract must wholly and clearly rest to escape the stroke of nullity." City of Laredo v. Int. Bridge T. Co., 66 F. 246, 14 C. C. A. 1.
But the elusive object is admittedly before this court by virtue of the rule of liberality with which we consider the allegations contained in a petition when tested by a demurrer.
Our territorial court in Guthrie Leader v. Cameron,3 Okla. 677, 41 P. 635, isolated the detestable thing and defined it as an exclusive privilege not enjoyed by others — an act of doing all the printing required by the state and requiring all officers of the state to have their printing done by such company.
It has been held that:
"Monopoly of trade embraces two essential elements: (1) The acquisition of an exclusive right to or the exclusive control of, that trade; and (2) the exclusion of all others from that right and control." U.S. v. Trans-Mo. Freight Ass'n, 58 F. 58, 7 C. C. A. 15, 24 L. R. A. 73.
LaFollette said:
"These trusts, clothed with corporate power, availing themselves of every advantage of the law, yet living and growing in greatness and power in violation of it, constitute a national and interstate problem that must be dealt with fearlessly and effectively."
He pointed out that in St. Louis they organized "to boodle the city with their criminal compacts for secrecy that would chill the blood of common cutthroats."
Governor Altgeld said:
"Having learned what vast sums can be extorted from the American people, the monopolies used a part of the wealth they got from this source to corrupt the people's representatives, and thus obtained unlimited privileges of plunder, until almost every great city in this country is tied and gagged, and cannot even enter a protest while being robbed."
He said:
"* * * The most serious problem that confronts the people of America today is that of rescuing their cities, their state and the federal government, * * * from absolute control of corporate monopoly. How to restore the voice of the citizen in the government of his country, and how to put an end to those proceedings in some of the higher courts which are farce and mockery on one side, and a criminal usurpation and oppression on the other."
In Flynn Construction Co. v. Leininger, 125 Okla. 197,257 P. 374, this court construed sections 10091, 10093-10095, O. S. 1931, requiring that highway construction contracts be let to the lowest responsible bidder, and determined that the statute required competitive bids on all items comprising the contract. There, time of construction was an item omitted from the specifications, and upon which the bids were not competitive. Here, competition is utterly lacking in the cost of "blended rock asphalt," the furnishing of which is an integral part of the contract upon which bids were submitted. The cost of the common material is exorbitant and the product is exclusively owned and the price is fixed and said to be uniform. We held in the cited case:
"It is true that this commission is vested with broad powers and discretion, but it is true also that the exercise of such powers and discretion must not be inconsistent with the act itself nor with other laws of the state. * * * Hence, the commission is without authority to omit an essential element from the bids."
See, also, Leininger v. Ward et al., 126 Okla. 114,258 P. 863.
Who denies that the asphaltic material is one of the principal elements or items of this contract for construction? Who denies that there is no competition in the furnishing of this material?
It is urged by the majority that the commission might exercise the powers of eminent domain and requisition this material, and such is admitted by all. But it must be remembered in such cases there is a final evaluation by a commission or a jury under supervision of a court of justice, and not an arbitrary tare or fixing of price by the owner of the monopoly.
This dissenting view was sustained in Fishburn et al. v. City of Chicago (Ill.) 49 N.E. 532, wherein the city of Chicago specified materials prepared from refined Trinidad asphaltum obtained from Pitch Lake. After citing the cases of City of Chicago v. Rumpff and City of Chicago v. Turner, 45 Ill. 90, it was said:
"The conclusion of the court was that the ordinance then under consideration tended necessarily to create a monopoly, and was therefore void; and the doctrine of the *Page 124 case is approved in People v. Chicago Gas Trust Company and Foss v. Cummings, supra."
These words were, used by the Illinois court:
"If the requirement, that the asphaltum to be used in the improvement should be obtained from Pitch Lake, in the island of Trinidad, tended to restrict competition among those who might desire to become bidders for the performance of the work of improving the street, or tended to create a monopoly in favor of any one having for sale the asphaltum necessary to be used in the Work of paving, the said street, it would fall under the ban of this general rule of the law, and must be declared inoperative and void It does not appear from the face of the ordinance that the effect is necessarily so to prevent competition or create a monopoly; but the proffered proof, which the court excluded, unmistakably disclosed that the asphaltum required by the ordinance to be used in making the street was a product which could only be obtained by purchase from a single corporation. The direct effect of the requirement, therefore, was to create a monopoly in favor of that corporation, and to restrict competition in bidding accordingly."
The court further said in substance that the asphalt offered by the Barbour Asphalt Company did not have any superior or legal rights in the markets, and no preference could be given to it under the specifications, but that the Barbour Asphalt Company should depend upon its merits for any monopoly that it might obtain.
"But it may be said that cities, in the construction of public improvements, ought to have, as have individuals in the construction of private structures, the right to select for use the article or substance best fitted and adapted to the purpose, and that to deprive the public of the right to select and use such superior articles is opposed to public policy, and positively disadvantageous to the public. The force of this argument must, of course, be admitted; but upon reflection it is readily seen it is not necessary to foster and create a monopoly, and prevent competition in the letting of public contracts, by providing in ordinances that a certain substance, or article, and no other shall be used. If it be the judgment of the city council that the most suitable and best material to be used in any contemplated improvement is the product of some particular mine or quarry, or some substance or compound which is in the control of some particular firm or corporation, the ordinance might be so framed as to make such production, substance, or compound the standard of the quality and fitness, and to require that material equal in all respect to it should be employed. An ordinance making it indispensable that an article or substance in the control of but a certain person or corporation shall be used in the construction of a public work must necessarily create a monopoly in favor of such person or corporation, and also limit the persons bidding to those who may be able to make the most advantageous terms with the favored person or corporation. If all the ordinances adopted by the city council of the city of Chicago providing for the paving of streets and public places in the city should select the stock in trade of a particular firm or corporation as the only material to be used in making such street improvements, the evil would be intolerable; and, if they may lawfully select such article in one ordinance, it cannot be unlawful to make it the settled policy of the city that material for paving streets shall be purchased of but one seller."
From the above it may be seen that this case presents a situation that is clearly parallel with the facts in the present case, both bids being, required to be let to thelowest responsible bidder.
In so holding the Supreme Court of Louisiana in Redersheimer v. Flower, Mayor, et al., 52 La. Ann. 2089, 28 So. 299, used the following language:
"Plaintiff, a citizen, taxpayer, and owner of land on the street it is proposed to pave, instituted this action and sued out an injunction to prevent defendants from carrying out a contract for the paving with asphalt of St. Charles street, from Canal street to the terminus of the present asphalt pavement around Lee Circle. The grounds of complaint are that defendants required, in the proposal for bids, that all rock asphalt used in the pavement be mined from one or more of the deposits. * * * The proposal was for the construction of a pavement of sheet or rock asphalt, the one being considered of equal value to the other, and the specifications, as relates to the proposals for bids, were intended for both. They were both treated is being on the same footing and as being of equal grade. It appears that the difference between the two, the rock and the sheet asphalt, is not, considerable. The sheet asphalt has very nearly the same proportion of ingredients as the rock asphalt. When laid in a pavement, they amount, as relates to use, to about the same thing. One is the natural product of the mines, and the other is artificial — an imitation of equal value to the original.* * *
"The testimony shows that the material, in question is of a superior quality. The *Page 125 difficulty grows out of the fact that it is obtained from one of the few mines mentioned in the specifications (that is, by special mention in the specifications), and in that way, plaintiff urges, competition was stifled. It is true that rock asphalt is obtained in large quantities in many places. It is also true that it varies in its composition, and that much of it is of inferior quality. For this reason defendants contend, in support of the specifications which plaintiff asserts are offending and injurious, that a standard must be adopted in order to protect the city against worthless materials. We are not inclined to deny the truth of the proposition. In view, however, of the provisions of the charter requiring competition in matter of bids, we are disposed to think that the specifications in question should be expanded a little and liberalized somewhat. While the lowest bidder should not be afforded the opportunity of using untried and worthless materials, on the other hand, the standard or grade of materials required should be broad enough to embrace, if not absolutely all, at least a goodly portion, of the first-class material offered for sale. Rock asphalt is not res incognita. It has been known from time immemorial, and surely a standard of quality can be adopted without limiting bids to three or four mines. We are informed by the evidence that the foreign product of the rock-asphalt mines referred to was selected chiefly for the reason that domestic rock asphalt has not given satisfaction as a pavement. None the less, we do not find in the record sufficient reason for excluding, all mines save those mentioned in the specifications. There are many other mines than those before mentioned which produce a pure and durable quality of rock asphalt. Even domestic rock asphalt, although it has yet found its, way freely into the markets, is entitled to a hearing.
"The specifications set forth that 'all rock asphalt used in this pavement must be natural, bituminous, limestone rock mined from one or more of the natural deposits.' * * * This positively excludes all rock asphalt * * * save that before named."
The Supreme Court of the United States in Butchers' Union Slaughter House and Co. v. Crescent City Livestock Co.,111 U.S. 746, 28 L.Ed. 585, 4 S.Ct. 652, condemned these institutions in the following language:
"Monopolies are the bane of our body politic at the present date. In eager pursuit of gain they are sought in every direction. They exhibit themselves in corners, in the stock market and produce market, and in many other ways. If by legislative enactment, they can be carried into the common avocations and callings of life, so as to cut off the right of the citizen to choose his it vocation, the right to earn his bread by the trade which he has learned, and if there is no constitutional means of putting a check to such enormity, I can only say that it is time the Constitution was still further amended."
Judge Story said that a monopoly was: "An exclusive right granted to a few, of something which was before of common right." Charles River Bridge v. Warren Bridge, 11 Pet. (U.S.) 420, 9 L.Ed. 773.
Happily, as I see it, the statute here applicable, requiring competition in all things, supplements the constitutional inhibition against monopoly, vitalizes it in the event it is not self-executing, and applies the test to all contracts to be let by the Highway Commission, thus striking down specifications upon which contracts are to be based that have the effect of perpetrating a legal fraud upon a people.
"Such monopolies," says Thompson on Corporations (2d Ed.) vol. 5, p. 363, "are justly odious, as they operate not only injuriously to trade, but against the general prosperity of society." Again he says (p. 364):
"So contracts which tend to prevent competition between those engaged in public employment, or business impressed with a public character, is opposed to public policy and void. * * * It is conceded that monopolies may be created; but it is said that they must be called into being by the sovereign power alone (and not by administrative officers). They are regarded contrary to the genius, of a free government, and should not be encouraged by the people or countenanced by the courts, except when expressly authorized by positive law" (such as in the case of patents); "and in many of the state Constitutions, the grants of monopolies are expressly forbidden."
"The rule is that all contracts in which the public are interested which tend to prevent competition, where the law requires competition, are void." Fishburn v. Chicago, 171 Ill. 338, 49 N.E. 532, 63 Am. St. Rep. 236, 39 L. R. A. 482.
In the case at bar, I do not find it at all necessary to invade the discretion vested in the State Highway Commission to select the most desirable road material available, whether natural or manufactured, establish a standard and require all bidders to conform to that standard, but when specifications are so narrowed by that board, as in the case at bar, so as to embrace a monopoly contrary to the public policy *Page 126 expressed in Constitution and statute, it is manifest that the state agency has committed a gross abuse of discretion, indulged a fraud upon the taxpayers of the state, founded an institution that leads to corruption, indulged improper motives by stifling competition, plainly disregarded its duty, grossly abused its power and violated the law. The judgment of the district court should be reversed, with directions to grant the injunction.