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conditioned upon defendant's keeping the pavement in repair for five years, and decides that a city having power to repair its streets and to assess the cost against abutting property is empowered only to make provision for repairs demanded by present exigencies, and it is ultra vires for it to levy the estimated cost of anticipated future repairs against the property of individuals, and that such city has no power to incorporate in a street paving contract a condition that the contractor shall keep up repairs for a period of five years; the effect of such provision being to increase the contract price and impose upon abutting owners an added burden on account of anticipated repairs. The second named case was an action to foreclose a street assessment lien upon abutting property, and decides that a municipal ordinance requiring a contractor for street improvements to file a bond guaranteeing the work for one year from injury by ordinary use, is unauthorized, increasing the burden of the property owners. These cases depend upon the law of the particular 557 states involved, which denies to city authorities the power to assess abutting property owners for the cost of future anticipated street repairs, and can have no application to the present controversy and the facts of this case. The defendant company voluntarily signed the bond in this case and makes no objections to its provisions. The plaintiff, as taxpayer, is not interested to impeach or restrain the transaction unless some burden is thereby illegally placed upon him. The money arising from the sale of the bonds issued for improvement of the streets and sidewalks of Spartanburg will undoubtedly have to come finally from the taxpayers in paying for interest and final redemption of the bonds, but the fund was provided for the specific purpose of meeting anticipated street improvement. We regard the provisions of the contractor's bond as a reasonable and suitable guaranty for the faithful performance of the contract, within the discretionary power of the city council to require, and advantageous to the plaintiff as taxpayer in safeguarding the expenditure of the city funds. If such provision should naturally tend to increase the cost of the improvement, the taxpayer has an ample quid pro quo in the guaranty that the work shall be carefully and skillfully done according to the specifications.

4. The petitioner finally contends that the city council had no power to contract for the use of patented articles in improving the streets, as it tended to create a monopoly and

destroy competition. This contention is based upon the fact that the construction of bitulithic pavement under the specifications and contract involved the use of "Warren's No. 24 Puritan Brand Hard Bituminous Cement, Warren's Puritan Brand No. 21 Bituminous Water Proof Cement, and Warren's Quick Drying Bituminous Flush Coat Composition," articles or materials covered and protected by letters patent issued by the United States and controlled by Warren Brothers' Company, and Southern Bitulithic Company. The contention is that there can be no real competition when the specifications require 558 the use of an article which is the subject of monopoly. On this proposition petitioner cites many cases, among which are Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205; but see modification in Kilvington v. City of Superior, 83 Wis. 222, 53 N. W. 487, 18 L. R. A. 45; Fishburn v. Chicago, 171 Ill. 238, 63 Am. St. Rep. 236, 49 N. E. 532, 39 L. R. A. 482; Seigel v. Chicago, 223 Ill. 428, 79 N. E. 280; Fineran v. Central Bith. P. Co., 116 Ky. 495, 76 S. W. 415; Monoghan v. Indianapolis (Ind.), 75 N. E. 33; City of Atlanta v. Stein, 11 Ga. 789, 36 S. E. 932, 51 L. R. A. 335; Smith v. Syracuse Imp. Co., 161 N. Y. 484, 55 N. E. 1077; Burgess v. Jefferson, 21 La. Ann. 143; State v. City of Elizabeth, 35 N. J. L. 351; Nicholson Paving Co. v. Painter, 35 Cal. 699; but see modification in Perine etc. Co. v. Quackenbush, 104 Cal. 684, 38 Pac. 533. A contrary view is supported, however, by numerous citations, among which are Hobart v. Detroit, 17 Mich. 246, 97 Am. Dec. 185; Holmes v. Common Council, 120 Mich. 226, 77 Am. St. Rep. 587, 79 N. W. 200, 45 L. R. A. 121; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22, 18 Am. St. Rep. 530, 13 S. W. 98, 8 L. R. A. 110; Field v. Barber Asphalt Pav. Co. (C. C.), 117 Fed. 925; Hastings v. Columbus, 42 Ohio St. 585; In re Dugro, 50 N. Y. 513; followed in Baird v. New York, 96 N. Y. 567.

The view we take renders it unnecessary to make detailed reference to the various cases pro et contra on this subject. The keystone of the argument in support of the Wisconsin line of cases is that where the statute requires competitive bidding, after advertising, as a condition precedent to the power of the municipality to contract for street improvement, the statute is violated when the city ordinance or contract specifications require the use of a patented or monopolized article, because there can be no real competition when the bidding is practically restricted to the individual or cor

poration controlling the patent; on the other hand, the fundamental reason supporting the Michigan line of cases is that even where the statute requires competitive bidding, it is not violated, or does not apply, when all the competition. is allowed which the situation permits; that a 559 municipality should not be denied the right, for the benefit of its citizens, to avail itself of useful inventions and discoveries, even though protected by patents; and that, when a city exercising its power to make public improvements in good faith decides to contract for the use of patented articles, there is created no monopoly and no abatement in competition beyond what necessarily results from the rights and privileges given the patentee by the federal government. The question is admittedly close, but we incline to the latter view as best supported by reason and the weight of authority.

With respect to the competition allowed in this case, it must be remembered that the sharpest competition was sought and provided for among contractors for various kinds of pavement, including brick, asphalt block, and bitulithic pavement, specifications for each class of pavement were made, and the city council in the advertisement reserved the right, accorded by law, to reject any bid, and also to reserve the right to decide upon the material to be used after the opening of bids, and did not determine to have bitulithic pavement until it appeared that the bid therefor was the lowest made for any specified kind of pavement. Furthermore, it appears that the city council, in order to enable any bidder to secure the material and process covered by such patents, secured from patentees in advance their offer to furnish said material to any bidder at a fixed price, together with an explanation of their methods and material for construction. It is not doubtful that, if an award had been made to another competitor bidding for bitulithic pavement upon the faith of the offer of the patentee on file with specifications, such holder would have a right to demand and receive such materials upon compliance with the offer. In view of these facts, there was allowed all the competition which in the nature of things was possible. But a conclusive reason for sustaining the validity of the contract in question is that there is no statute in this state which compels the city of Spartanburg to submit this matter to competitive bidding.

There is nothing in the record to suggest fraud or abuse of discretion on the part of the city council, and, as the award

ing of the contract to the defendant company was within the power of the city council, there is no equity to restrain the performance of the contract.

A Provision in a City Charter that certain contracts shall be let to the lowest responsible bidder is mandatory, and a compliance therewith is essential to the validity of such contracts: Inge v. Board of Public Works, 135 Ala. 187, 93 Am. St. Rep. 20; Chippewa Bridge Co. v. Durand, 122 Wis. 85, 106 Am. St. Rep. 931.

A Municipal Ordinance Requiring a Contractor for street improvements to file a bond guaranteeing the work for one year from injury from ordinary use is unauthorized, increases the burdens of property holders, and renders the contract and assessment invalid: Alameda Macadamizing Co. v. Pringle, 130 Cal. 226, 80 Am. St. Rep. 124. See, too, Portland v. Bituminous Pav. Co., 33 Or. 307, 72 Am. St. Rep. 713; Inge v. Board of Public Works, 135 Ala. 187, 93 Am. St. Rep. 20.

CASES

IN THE

SUPREME COURT

OF

SOUTH DAKOTA.

GARRIGAN v. KENNEDY.

[19 S. Dak. 11, 101 N. W. 1081.]

CONSTITUTION, Provisions of, When Mandatory.-The provision of the constitution of South Dakota that no law shall embrace more than one subject, which shall be expressed in its title, is mandatory. (p. 930.)

STATUTES Which Contain but One Subject.-An act purporting to provide for the licensing, regulation, and restriction of the business of the manu eture and sale of spirituous and intoxicating liquor contains but one subject, which is sufficiently expressed in its title, though it imposes penalties and liabilities upon persons engaged in the liquor traffic, and provides proceedings for their enforcement, including the right and remedies of a married woman to recover damages for the selling of intoxicating liquors to her husband. (p. 932.)

INTOXICATING LIQUORS, Damage Due to the Selling of, When Sufficiently Proven.-If, in an action against a saloon-keeper and his sureties, evidence is received tending to show that the husband of the plaintiff during the last months of his life was in the habit of becoming intoxicated and spending nearly all his time and earnings in the saloon of the defendant, and purchasing and drinking liquor there, from which he became and was kept intoxicated until he committed suicide, leaving no means of support to the wife and child, the jury was warranted in finding that the liquor sold by the defendant saloon-keeper caused the decedent to neglect his family and to end his life, and hence supports a verdict in favor of the plaintiff for damages. (p. 933.)

APPELLATE PRACTICE-Evidence, When will not be Reviewed. When a party has given sufficient legal evidence to sustain a verdict, the appellate court will not review the evidence nor reverse the verdict. (p. 933.)

INTOXICATING LIQUORS, Suicide, When may be Found to have been Due to the Selling of.-If a man is practically intoxicated for a long time, during which he is furnished liquors at a saloon, and the intoxication is followed by suicide, the jury, in an action by the wife of the decedent against the saloon-keeper and his sureties, are justified in finding that the suicide was due to the action of the saloon-keeper in furnishing such liquors, and therefore in awarding damages to the widow. (p. 934.)

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