HOBART v. THE CITY OF DETROIT.

position of holding contracts void on the ground that competition was impossible, and, therefore, the benefits of the public letting could not be obtained, when in fact there had been competition, and the benefit had actually been realized. I do not believe there is any mere implication of the law which can force us to this conclusion; and, to my mind, it is very clear that the legislature would not intentionally have so tied up the hands of the city authorities as to preclude their making use of new and valuable inventions. I am not, therefore, disposed to put upon the charter a forced construction to that effect, which its terms do not appear to me to justify.

I am aware of the contrary decision which, by a divided court, has been made in Wisconsin in the case of Dean v. Charlton, but with great respect for the reasons assigned by that court, I am still brought to the conclusion that the decree of the Circuit Judge was correct, and it must be affirmed.

CHRISTIANCY and GRAVES JJ. concurred.

CAMPBELL J.

I am unable to reconcile the action of the city with the provisions of its charter. It may be very desirable to allow such a course to be taken, but the prohibition seems to me to be very clear, and if this case can be taken out of it, I do not perceive how, in any case, the citizens can be protected from the very dangers which this clause was intended to prevent.

The charter- Chap. 8, § 12. - declares that no contract for paving (or various other things), if for more than $200, shall be "let or entered into, except to and with the lowest responsible bidder, with adequate security, and not until advertised proposals and specifications therefor shall have been duly published in a daily paper." The same section prohibits contracts with persons who are in arrears to the

HOBART v. THE CITY OF DETROIT.

city, as well as some others, and forbids contracts requiring mechanical skill to be let to other persons than mechanics.

It can not be claimed that if the monopoly of the pavement in question belonged to a public defaulter, or to one who was not a practical mechanic, any ground of dispensation could be found. Yet the necessity for opening the door would be as great in that case as in any other, if the city needs the improvement. But it has not been deemed safe to allow a full and free choice and we have no power to remit any legislative requirement.

The clause in question can not usually create more difficulty where articles or processes are patented, than in other cases. The patent laws contemplate that things patented shall be offered to the public on equal terms, and so generally is this done that the rule of damages for infringement is governed by the price usually charged. And in most cases, therefore, improvements requiring the introduction of patented articles or methods, are as open to general competition as any others. But if a rigid monopoly is kept up, there can be no competition, and all the evils contemplated by the act are introduced. Instead of obtaining the work at the lowest price, it can only be had at the highest price, which is supposed to fall short of prohibition. Instead of competing skillful workmen, those must be employed whom the patentees see fit to force upon the corporation.

Instead of choice in the quality of materials, it must accept such as the contractor is willing to engage for. And publication of proposals must be an empty ceremony when there is no chance for competition, and when the choice of the patented improvement is practically equivalent to a choice of the contractor at his own price.

The charter was designed not only to provide against extravagant prices, but also, (as is very clear from many clauses), to prevent the opportunity of favoritism and corruption in the Council. If there are several different kinds of paving, and only one is patented, the patentee, retaining

HOBART V. THE CITY OF DETROIT.

his monopoly, would find it well worth his while to be liberal in inducements to select his plan, and could afford to be all the more liberal because he could recover back his outlay by enhancing his prices. But those whose bids were open to competition would, to say the least, stand on a much less favorable footing. While there is no reason for imputing any wrong motives in this case, and while I do not believe that many public bodies are open to these sinister influences, yet it is not to be denied that this is one of the dangers in the eye of the legislature, and I can conceive of no more fruitful source of possible inducements to corruption than the monopoly of paving the streets of a large city.

It must not be forgotten that while the adoption of a new style of paving may be convenient, it can never be necessary. No patent continues beyond a few years, and a city that is within fourteen years of the last improvement can not be very backward in progress. Moreover, the real merits and durability of a new pavement can never be fully tested very much before the term of privilege has approached its close. As each new plan is generally somewhat expensive, its adoption must always require some consideration. The cost of paving is never a very light burden, where property is unproductive, and falls heavily upon many who are not able to bear any needless charges. Those plans which have been tried and best known are apt to be reasonably economical. The charter requires these safeguards to protect the individual citizen upon whom this expense is charged, and nothing short of necessity can render it expedient to open the door to unchecked expenditure. I can not see any strong reason for assuming that if this very case had been presented to the legislature they would have found in it any occasion for qualifying their language, or for removing the restrictions which they have in terms imposed.

I think the case comes within the spirit as well as the letter of the charter, and that the injunction should be made perpetual.

THE PEOPLE V. PRITCHARD.

The People ex rel. Edmund Heather and David W. Allison v. Benjamin D. Pritchard, Commissioner of State Land Office.

Swamp Lands: Contractors: Selection. Under the act of 1859, p. 310; providing that contractors for the building of roads might elect to take swamp lands in lieu of money in liquidation of their contract, etc., held, that they were not entitled to select lands which were not subject to entry at private sale.

The purpose of the legislature was to make no distinction between contractors and other persons as to the value of the consideration to be received by the State for the lands. And it was never intended that such contractors should have the right to select at pleasure from the body of lands not placed in market, and from which all the other persons had been excluded from purchasing.

Heard July 7th. Decided July 13th.

Mandamus.

This was an application to compel the Auditor General to execute deeds for certain swamp lands.

It was based upon the following petition:

"Your petitioners, Edmund Heather and David W. Allison, of the County of Saginaw, in the State of Michigan, respectfully represent:

That by virtue of an act of the Congress of the United States, approved the 28th day of September, 1860, entitled "An Act to enable the State of Arkansas and other states to reclaim the 'Swamp Lands' within their limits," there was granted to the State of Michigan, amongst others, the following lands, in the lower peninsula of said state, the northwest quarter, and the southwest quarter of the southeast quarter of section thirteen, and the southeast quarter of northeast quarter of section fourteen, and the west half of northwest quarter of section twenty-one, in town twentyfive north, range seven west, containing in all 320 acres; and which lands were afterwards duly conveyed to the State of Michigan, prior to the 20th day of December, 1866, and known as swamp lands.

That on the 18th day of August, 1865, one Ira Amsbury entered into a certain contract to construct section

THE PEOPLE V. PRITCHARD.

eight, part of a certain road, called the Saginaw, Gratiot and Newaygo road, which part so to be constructed commenced at section stake number seven, and ending at stake number eight, according to the specification contained in said contract.

That said contract was duly signed and executed by said Amsbury, on his part, and by a local commissioner of said road, duly appointed and authorized for that purpose, and on the 20th day of December, 1866, was duly approved in writing endorsed thereon by the Governor of the State of Michigan.

That in and by said contract the said local commissioner bound himself officially to certify to the completion of the said road, when so completed, and to cause to be issued to the said Amsbury, by the Commissioner of the State Land Office of the State of Michigan, certificates for 320 acres of land, to be selected by the said Amsbury from any of the swamp lands in the State of Michigan, in the lower peninsula, applicable to the construction of said road, according to the rules and regulations in force in the office of said Commissioner of the State Land Office.

That afterwards the said Amsbury did proceed to construct, and did complete the section of said road referred to in said contract, and, in all respects, perform said contract, in every particular thereof, on his part to be performed; and afterwards, on the 28th day of November, A. D. 1867, the Swamp Land Road Commissioner of said state having certified and reported that said contract had been completed in good faith, and said contract fully performed, the same was duly approved by the Board of Control of the State of Michigan, and a warrant issued by the Auditor General for the payment thereof, and all things done and acts performed on the part of said Amsbury, which entitled him or his assigns to payment for the construction of said road.

Your petitioners also state, on the 27th day of April, 1867, the said Ira Amsbury, by his certain writing, duly