dissenting.
Is the paving contract in controversy valid under a city charter declaring that the manner of procuring pavements shall be “by contract with the lowest responsible bidder?” Rev. St. 1913, sec. 4941. The purpose of the statute is to protect those upon whom the cost of paving falls. To this end competitive bidding is required. Can there be competitive bidding in good faith, within the meaning of the statute, where the greater part of the total expense of the completed pavement must be incurred for a patented article controlled by a monopoly? The contract requires “bitulithic pavement” — a patented article controlled by the patentee. The cost of the bitulithic material is more than half of the entire expense of the paving. The owners of the patented material offered to furnish it to all bidders at the rate of $1.35 a square yard. This price is arbitrarily fixed by the patentee, and is not determined nor affected by competitive bidding among paving contractors. Other items, such as grading, curbing, concrete base, and *140labor, may be subjects of competition, but tbeir cost is only a minor part of the total expense. It seems to me the substantial competition demanded by the statute is defeated where the principal item entering into the contract price and representing the greater part of the total expense of the paving is patented and controlled by a monopoly. Allen v. City of Milwaukee, 128 Wis. 678, 5 L. R. A. n. s. 680; Fineran v. Central Bitulithic Paving Co., 116 Ky. 495, 3 Am. & Eng. Ann. Cas. 741; Pollock v. City of Kansas City, 87 Kan. 205; Siegel v. City of Chicago, 223 Ill. 428. The courts deciding these cases took a view at variance with the majority in the present case and adopted a better rule. If defendants are dissatisfied with the city charter, the remedy is different legislation rather than judicial construction.