Litchfield v. Bridgeport , 103 Conn. 565 ( 1925 )

The first three questions propounded for the advice of this court depend fundamentally upon the right of the city engineer to designate in the specifications for road surfacing a patented article. The first and second questions involve plaintiff's claim that the specifications issued necessarily resulted in frustrating the clearly expressed intent of the Act that the contracts should be let to the lowest responsible bidders. The third question involves the right generally to specify a patented article in connection with the competitive bidding. As a preliminary question plaintiff strongly urges the consideration of the views of the various parties as presented before the finance committee of the General Assembly, and the expressed understanding of the committee as to the meaning of the bill by them reported to the Assembly and afterward passed, as being an important and even controlling factor in the interpretation of the Act. We cannot sustain this contention. The intention of the legislature is to be gathered from the words of the enactment, taken in connection with prior legislation contained in the city's charter and such surrounding facts as to the state of the art of road-making, and usual methods of attaining satisfactory results, structural and financial, of which the court may take judicial notice. The claims of the contestants before the committee and the ideas which the committee may have entertained are not to be regarded. Had the Superior Court proceeded to a trial in the instant case with a view to finding the facts, evidence tending to show the legislative purpose by what occurred at a committee hearing and by conclusions of the members of such committee would not have been admissible. In State v. Blake, 69 Conn. 64,75, 36 A. 1019, a claim was made to introduce evidence of what occurred at a committee hearing, and the evidence was excluded by the trial court, and its action sustained on appeal. In that case we said: "One ground for such ruling was that whatever took place before said committee was not made known to the legislature, and that the private reason which influenced the individual members of the legislature could not be shown for the purpose of affecting a legislative Act. The intention of the legislature can only be shown by its vote. Fletcher v. Peck, 6 Cranch [10 U.S.] 87; Soon Hing v. Crowley, 113 U.S. 703 [5 Sup. Ct. 730]; Flint F. Plank Road Co. v. Woodhull,25 Mich. 99; Sutherland on Stat. Construction, § 430; Endlich on Statutes, § 32." We have sustained this doctrine in State ex rel. Judson v. County Commissioners,68 Conn. 16, 23, 35 A. 801; State v. Faatz,83 Conn. 300, 305, 76 A. 295; State v. Penner, 85 Conn. 481,484, 83 A. 625, in which the earlier cases upon the subject are collected and cited. See also Chamberlain v. Bridgeport, 88 Conn. 480, 490, 91 A. 380. That the occurrences in connection with the legislative committee are contained in an agreed statement of facts does not render them in any way more entitled to consideration than if found by the trial court after a hearing.

It is contended by the plaintiff that the specifying of Warrenite-Bitulithic pavement as a surfacing material as applied in the case of the Blakeslee contract rendered nugatory the provision of the Act which provides for the letting of the contract to the lowest responsible bidder, taken in connection with the amount of the next lowest bid made by the Silliman Godfrey Company. As appears from the stipulated facts, the Blakeslee bid as itemized was for laying pavement composed of base and surfacing. The Blakeslee bid for surfacing with the specified patent material was itemized at $101,328.80, while the Silliman Godfrey bid for surfacing with sheet asphalt was itemized at $74,344.50, a saving, if the latter material had been used, of $26,984.30, yet, since the work of constructing the specified and necessary base was itemized at a much lower sum than the Silliman Godfrey bid, the combined Blakeslee bid was less than $3,000 lower than the competing bid; and if the Blakeslee bid had been made on the basis of sheet asphalt surfacing, as a proper specification would have permitted, then there would have been a saving of $26,984.30 to the city. This, as we have observed above, brings us back to the third question, as to the right of the city to specify the use of a patented article.

As regards contracts B and C, the plaintiff observes that while all other bidding contractors were under the burden of making all their profit upon a contract out of the laying of the patented material, the Warren Company had their profit assured in the return from their manufactured, patented product, and hence might forego all profit arising from the laying. The force of this claim is not evident, since the latter company had agreed to sell their product to their bidding competitors at a fixed price, and would presumably have made the same profit had one of these competitors secured the contract and paid the Warren Company for the material. This, however, as in the matter of the A contract, brings us back to the consideration of the third question.

The third question involves the right of the city under the Act to restrict the bids on surfacing material to the Warrenite-Bitulithic product. Plaintiff contends that no such right exists under the Act. The Act provides that from the avails of the bond issue two sorts of permanent pavement may be laid, that is, first, concrete throughout, or second, "surfacing material on a concrete, brick, granite block or bituminous concrete base." In the present case the specifications for both classes of work called for the surfacing material to be the Warrenite-Bitulithic composition, and all bidders were put on an equality by reason of the engagement of the Warren Company to sell its product at an established reasonable price and to license the use of all of its patents. It is evident that the Act confided to the city engineer the determination of the sort of pavement to be adopted, provided it conformed to its specific provisions. One course, claimed by the plaintiff to be the only correct one, would have been to have issued to bidders a specification as to surfacing prescribing in general terms the requirements for such work, so that bidders might in their tenders provide for any sort of surfacing claimed to come up to the requirements of the specifications. In that event it would have been necessary for the mayor and city engineer to take into consideration the kind of surfacing proposed in determining whether the same accorded with the needs of the city as set forth in the specifications; in other words, the city authorities had to determine at one time or another the kind of surfacing to be adopted. The other method of making this determination would have been to determine in advance the kind of surfacing most adapted to the needs of the city's highways which were to be put in condition, and to specify that kind. This latter method was the one employed, and we think that such action was within a proper construction of the terms of the Act. The question of adaptability of a proposed surfacing for use on the streets was bound to arise, unless the only question properly to be considered was one of price on the bid of a responsible contractor. If, indeed, this latter question were the only one to be determined, the result might be a number of cheaply constructed but undesirable streets, evidently something far different from what is contemplated in the Act. We think it is clear that the city engineer had a right to designate in advance the kind of surfacing required, provided, as is the case before us, equality among bidders was assured by a uniform price for the material to be used. The words of the Act are "surfacing material on a concrete" base. What this surfacing material is to be is necessarily to be determined in some way by the proper city authority, and we deem it clear that the determination might be made as well before the issuance of specifications as afterward. If the Act obliged the municipal authorities to open the bidding to any kind of pavement, and to decide among the competitors in favor of the lowest bidder, the result would be that the municipality would obtain the pavement of least cost, and in all probability of least value. Between the numbers of different pavements in the market there should be some agency for selection, and the most natural agency is the officials of the municipality, who should have the greatest interest in making the proper selection, and are directly responsible for the proper performance of their official duty to the people of the municipality who have to pay the price of their poor judgment. It is to be noted in this connection that the specification gives the city the right to reject any and all bids. In Johnston v. Hartford,96 Conn. 143, 158, 113 A. 273, it was contended that the street commissioners of the city of Hartford did not conform to an order of the common council of that city in advertising for bids for paving, which prescribed an advertisement for bids. In this case we said: "The order was to advertise for bids for paving `with asphalt, concrete, bitulithic, or other bituminous paving.' That meant that the board might advertise, as it did, for bids for asphalt or any one or more of the kinds of pavement mentioned. An option was given. Moreover, the board has, as we have seen, the power granted by special law to select the kind of pavement it deemed proper. 12 Special Laws, p. 617. In advertising for bids for asphalt only, the board complied with the order and acted within its independent powers." The reasoning of this case is applicable in the instant case. But the stress of plaintiff's argument is that the inclusion of a patented article in the requirements of a specification is obnoxious to the rule of competitive bidding even where the article in question is open to purchase by bidders on equal terms. The great weight of authority seems otherwise. The defendants claim the correct doctrine to be as follows: "If, then, the statute be construed as requiring, by implication, competitive bidding for the pavement to be laid, the great weight of authority establishes the proposition that the selection of a patented article with a license agreement enabling all who may desire to bid upon the proposed work to secure the patented article at a set price, in no sense contravenes the requirement of the statute." The doctrine laid down in the above quotation is that sustained by the weight of authority.Bye v. Atlantic City, 73 N.J.L. 402, 64 A. 1056;Warren Brothers Co. v. City of New York, 190 N.Y. 297,83 N.E. 59; Johns v. Pendleton, 66 Or. 182,133 P. 817, 134 id. 312; Baltimore v. Flack, 104 Md. 107,64 A. 702; Kilvington v. City of Superior, 83 Wis. 222,53 N.W. 487, 18 L.R.A. 45 and note; Saunders v. Iowa City, 134 Iowa 132, 111 N.W. 529, 9 L.R.A. (N.S.) 392; Hobart v. Detroit, 17 Mich. 246, 97 Amer. Dec. 185; Allen v. Milwaukee, 128 Wis. 678,106 N.W. 1099, 5 L.R.A. (N.S.) 680 and note; 2 Elliott on Roads Streets (3d Ed.) §§ 710-712; 3 McQuillin on Municipal Corporations, § 1197; 2 Dillon on Municipal Corporations, § 803 and notes. The notes in the annotated cases and in the text-books above cited contain abundant supporting authority.

The fourth question propounded for advice is concerned with the right of the city through its designated officials to expend the avails of the bond issue upon other streets than those named in the Act without the permanent pavement laid on the base therein specifically described. It is the contention of the plaintiff that not only the designated streets, but all streets selected for pavement must have such a base; on the other hand, the defendants claim that apart from the streets particularly named, the city engineer has the power not only to designate the additional streets to be paved, but also to determine the sort of pavement to be laid, both as respects base and surfacing. We regard the claim of the plaintiff as being in accord with the proper construction of the Act.

It will be noted, in the first place, that certain streets are named and pavement of a certain sort prescribed for them or such portions of them as the city may recommend. The sort of pavement prescribed for these streets is unquestionably of a nature and quality properly called permanent. In addition to these streets or parts of these streets, the proceeds of the bond issue may be used "for the paving of such other streets with such pavement as the city engineer may recommend." Concededly this clause is not free from ambiguity, and its effect must be determined by consideration of its relation to the context of the Act. The Act confers upon the city engineer certain discretion. He has this discretion with regard to the named streets as to whether the whole extent of each of them, or only certain parts, shall be improved by the laying of pavement of a permanent type, and also what other streets shall be paved. The point at issue is whether the discretion as to the other streets extends to the type of pavement. It must be conceded that the word "such" when used before pavement may be equivalent to "said" and refer back to the type of pavement previously described in the section of the Act with which we are concerned, or it is susceptible of a construction whereby it may be equivalent to the words "the sort of" or some like expression. The plaintiff claims that the whole matter may be cleared up by a transposition of words, whereby the clause may be read "and for the pavement of such other streets as the city engineer may recommend, with such pavement," and as we regard it, the same result would be attained by placing a comma before and after the phrase "with such pavement." The defendants claim that the plain purpose of the Act can only be subserved if some such change is made in the wording of this phrase as to add the word "and" between the words "such other streets" and the words "with such pavement"; or again, by leaving out the word "such" before "other," or by substituting "any" for "such" before the words "other streets." The phrase might, upon good authority, be treated in this way, if carrying out the plain intent of the Act as a whole clearly indicates the necessity of such procedure. Resort to such methods is not favored, however, unless necessary to make legislation conform to a very evident intent. If, now, we turn to the section now being considered, we find that the city engineer has power to recommend "such portions" of the enumerated streets for paving with the designated permanent paving. His recommendation here relates to streets, that is, parts of streets, and if we go on to the next instance in which he is to recommend, we find it again concerned with streets, with the designation of additional streets to be paved as he "may recommend."

Then it is not to be forgotten that the Act provides for the use of the avails of the bond issue for permanent paving, and follows with a definition of paving which certainly is entitled to be called permanent. The claim of the defendants is that the Warrenite surfacing material may, upon the recommendation of the city engineer, be spread upon a base or foundation already existing — it may be of macadam or some other light road construction, or it may be merely upon a gravel road. Such treatment of roads, though undoubtedly it might result in a much improved and fairly wearable surface upon some streets, hardly measures up to the standard of permanent pavement, and would seem to be more properly called ordinary maintenance and repair of existing streets. That the city sought and obtained from the General Assembly a bond issue to finance operations of the kind proposed in contracts B and C, and under the guise of permanent pavements to set on foot a most comprehensive system of road repair, is certainly not evident from the text of the Act nor the surrounding circumstances set forth in the stipulated facts. Yet counsel for defendants insist that from these facts no reasonable inference may be drawn, except one which allows the city engineer to set on foot road operations of as much or little permanency as he may choose, running from paving of the most permanent character known to the merest top-dressing of existing streets. Their argument is that the obvious purpose of the General Assembly was to assure the most durable pavement upon certain designated streets, and when that was done it followed as a necessary corollary that as to any other streets the city engineer had a free hand as to pavement, as regards base and surfacing. It is first urged that after these enumerated streets are cared for in the way provided by the Act, to lay the same heavy and permanent quality of paving on other streets would involve wholly unreasonable extravagance, and that one third to one half of the avails of the sale of bonds must be used for work not called for by traffic conditions in the city. This argument assumes that there are no other streets in the municipality requiring permanent paving with the same base as in the streets named, but the record does not so state; it further assumes that there must be an immediate expenditure of $500,000 in pavement work under the provisions of the Act. Such is not the case. The Act itself, in providing for securing funds for permanent paving, provides for a bond issue of a sum not exceeding $500,000. There is no obligation to issue bonds to the whole amount at once unless presently required. Then again there is no obligation resting upon the city to use at once the whole amount derived from the bond issue. Bonds for the amount approximately to be required for pavement of the kind expressly provided in the Act might be sold, and the remainder held unsold in the treasury to be used for permanent paving in the future. Money does not necessarily burn in the treasury of a city, as in the pocket of a spendthrift. The ordinary maintenance of the streets of the city with proper surfacing would seem properly a charge upon its regular annual budget raised in the ordinary way by current taxation. We conclude that the position of the plaintiff upon the point now considered is correct, both as arising from the text of the Act, and from its consideration in connection with the facts developed in the stipulation. But in addition to this, we have the resolution of the common council to issue the bonds under the authority of the Act, as the same appears as Exhibit C of the agreed statement of facts and as above set forth. The vote, in the first place, recites the Act of the General Assembly, and then resolves, in pursuance thereof, to issue "Pavement Bonds," the avails of which are to be applied "for the purpose of laying permanent pavement of concrete or surfacing material on a concrete, brick, granite block or bituminous concrete base on the streets in the above described Act." It therefore plainly appears that whatever streets are contemplated by the expression "in the above described Act," they are to be paved with the material and in the manner designated in the resolution. The bonds could not have been legally issued for a pavement other than that prescribed in the resolution of the council. The avails of the bonds are therefore appropriated for this specific purpose and cannot be diverted to any other purpose. This is well recognized law. Chatfield Co. v. Waterbury, 88 Conn. 322,329, 330, 91 A. 436; Dellaripa's Appeal, 88 Conn. 565,92 A. 116. It follows that so far as contracts B and C are concerned, no warrant exists for the use of any of the proceeds of the bond issue, in paying the amounts required by their provisions. This would be so even if the broad construction of the Act by itself, contended for by counsel for defendants, were tenable as regards streets covered thereby, since the vote issuing the bonds provides for the use of the avails from their sale only in laying the kind of paving described in the resolution of the council. We may add that this vote has value as a contemporary and official construction of the Act.

The questions propounded should be answered as follows: The first question, Yes; the second question, Yes; the third question, Yes; the fourth question, No.

The Superior Court is advised to render judgment in accordance with this opinion.

No costs in this court will be taxed in favor of any of the parties.

In this opinion the other judges concurred.