Barnard v. County of Kandiyohi , 213 Minn. 100 ( 1942 )

Were I able to agree that decision should be upon procedural grounds, I could easily concur in the result. But record and argument have given us all the material needed for decision on the merits. My opinion is that decision should go accordingly.

The opinion gives the assignments of error all the functions of a pleading in a new case. Thereby is again illustrated how an ancient and outmoded concept may improperly control judicial action. This method of decision throws back to the ancient days when a writ of error was considered in the nature of a bill of complaint against the trial court. Pound, "Appellate Procedure in Civil Cases," p. 35. There is no longer justification for permitting that notion, or any remnant of it, to influence decision.

Assignments of error are designed to aid the judicial process. To convert them into a bar to a just result is at least anomalous.

It is respectfully submitted that the decision overlooks two other important factors, one of law and one of fact.

The ignored legal factor is that plaintiff challenges the propriety of official, executive action. The county commissioners have the benefit of an initial presumption of official rectitude. That presumption made for them a primafacie case. That aside, the burden of proof all the way through was on plaintiff. Hence he should not prevail in the absence of evidence establishing misconduct vitiating the challenged contract.

The element of fact which, it is respectfully submitted, this decision ignores is that there is abundant evidence, admitted without objection (Record, p. 45, et seq.) that the addressograph machine is the only one that will print in oneoperation all the copies of tax statements needed in the office of the county auditor and treasurer. Both the addressograph machine and its competitor (on behalf of the manufacturer of which this action appears to be brought) are patented articles.

That brings us to the application of the statute upon which plaintiff relies, Mason St. 1927, § 991. The theory of decision below was that that statute should be construed and applied literally. If that were so, the decision would be unassailable.

The trouble with such literal interpretation is that it would result in an absurdity which the legislature could not have intended. In the case of an article subject to the monopoly created by a patent, there is normally no opportunity for competition. The purpose of a patent is to protect the patentee from competition. It is unthinkable that any legislature could have intended to prohibit county boards from purchasing, when needed, patented articles. It cannot be assumed that the purpose of such a statute is "to declare that no power should be exercised, or work done, or supplies furnished, unless of a character that would admit of competitive bids." In re Dugro,50 N.Y. 513, 517; Connecticut ex rel. City of Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 149 A. 410. The following cases in which governmental agencies have been permitted to specify patented or exclusively controlled materials in letting road construction contracts are examples of liberal interpretations of competitive bidding statutes. Saunders v. Iowa City, 134 Iowa, 132, 111 N.W. 529,9 L.R.A.(N.S.) 392; Holmes v. Common Council of Detroit,120 Mich. 226, 79 N.W. 200, 45 L.R.A. 121, 77 A.S.R. 587; In re Dugro, 50 N.Y. 513; Hobart v. City of Detroit, 17 Mich. 246,97 Am. D. 185; Sanborn v. City of Boulder, 74. Colo. 358, 221 P. 1077; Litchfield v. City of Bridgeport, 103 Conn. 565,131 A. 560; Wurdeman v. City of Columbus, 100 Neb. 134,158 N.W. 924; Burns v. City of Nashville, 142 Tenn. 541,221 S.W. 828; Eckerle v. Ferris, 175 Okla. 107, 51 P.2d 766; 46 L.R.A.(N.S.) 992; 77 A.L.R. 702. Those cases represent the weight of authority as to how competitive bidding statutes should be construed and express what appears to me the better view.

We have never heretofore had occasion to pass upon the question of statutory construction now presented. My submission is that we should not evade it and that the holding should be that where the best interests of the county or city will be served by the purchase of a patented article, obtainable from only one seller and performing a particular operation in a manner different from and more desirable than that promised by any similar appliance, the statute requiring competitive bidding does not apply. Baird v. Mayor of New York, 96 N.Y. 567; Silsby Mfg. Co. v. City of Allentown, 153 Pa. 319,26 A. 646; Addressograph Sales Agency v. County of Luzerne (Pa.) 32 Luz. Leg. Reg. 444; Connecticut ex rel. City of Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 149 A. 410;cf. Victora v. Village of Muscoda, 228 Wis. 455, 279 N.W. 663; Reiter v. Chapman, 177 Wn. 392, 31 P.2d 1005,92 A.L.R. 828.

In my opinion there should be a reversal with directions for the entry of judgment for defendants. If for procedural reasons we should not so terminate the case, there should be at least a reversal, with order for a new trial on additional evidence. That assumes that the construction of the statute for which I contend is the correct one. If it is, the result of this decision will be a miscarriage of justice, which could be easily prevented by decision upon the merits rather than technicalities of procedure.

The record shows that the county commissioners caused much investigation to be made before they purchased the machine in question. Presumptively their action was lawful. The burden is upon plaintiff to establish every element needed to show illegality. He failed to do so. He made no effort to show that the machine purchased by the county was in the field of competition to which the statute is confined.