The opinion
On Appellant’s Motion for Rehearing.
A careful review of appellant’s motion discloses that only one of the grounds present new matter, viz.: “This Honorable Court erred in holding that the specifications is a matter of fact depending upon the character of the thing to ba done; and in tMs case, where a process of incineration is required, which is a patented process, the City could not prepare specifications such as required by this Honorable Court, without involving the City in patent infringement suits or without requiring the City Engineer to design a process for incineration that would be wholly new, unheard of, and never tried out or proven successful.”
*399 However, as .it is disclosed by the record that neither appellant nor appellee alleged that the process of incineration under which appellant proposed to erect the incinerator plant was patented, or that the use of a patented process in the construction of the plant was contemplated by the parties to the involved contract, we are not called upon to discuss this ground of the motion. Nevertheless, in view of the fact that the matter thus presented may be interrelated with the questions discussed in our original opinion, we make the following observations in reference thereto:
The charter of tjhe City of Dallas contains no provision as to the manner in which its board of commissioners may secure the right to use any patented article or process; nor is it to be gathered from the pleadings or the instrument, the execution of which is sought to be enforced, that, in the construction of the incinerator plant, the use of a patented process was contemplated. But, conceding that the scheme for the construction of said plant contemplated the use of a patented process, said board of commissioners had full authority to secure the privilege of psing same before proceeding with any of the material preliminary steps required by the charter provisions of said city to be observed in order to complete for it a binding contract. This course was not adopted. The board of commissioners submitted their plans in general terms, and invited bids from those generally engaged in such construction work for the furnishing and installing of all necessary machinery and appurtenances, and for the erection of a building, as a part of the incinerator plant, all to be embraced within one bid. The case of Ricketson v. Milwaukee, 105 Wis. 591 , 81 N. W. 864, 867 , 47 L. R. A. 685, involved a similar state of facts, with the exception that the charter of the city of Milwaukee provided the mariner in which its board of public works, under proper authority from the council, could secure the right to use any patented article or process; which provision was not observed by the contract involved in that suit. However, we think the following portion of the opinion in that case is a comprehensive and appropriate review of said ground of appellant’s motion and demonstrates that same is not well founded, viz.:
“The indefinite character of the specifications, and the absence of plans had the effect of' stifling all competition. Each bidder was called upon to make a proposal, resting largely upon his own Judgment, with substantially no guide as to details. No one could tell which was the lowest bid, because no 'two would be on the same basis. That fact alone condemns the action taken. Of course, the court must take into consideration what was sought to be accomplished. At the same time it must consider that it cam. only be accomplished in the way pointed out by the charter. If it were true, as assumed, that the different methods of garbage cremation are held under letters patent, the first and the business like plan would be for the council to fix upon some one of the different systems. If the system adopted contemplated the use of certain makes of furnaces, which were necessary to its successful operation, there is no perceivable reason why the city may not bargain for them, with the right to use the process. Having fixed upon a definite scheme, the preparation of appropriate plans and specifications for the plant could be gone ahead with, and bidders secured for erection as pointed out. It is admitted that the right to construct the garbage crematory should be thrown open to the public to bid, so that the city shall get the freest competition; but it is argued that this cannot be secured by the adoption of any given system; that it can only be secured by the lines of policy pursued in 'this case. As already demonstrated, there can practically be mo‘ competition when the bidder is left to hisi own will or judgment in matters material to the scheme. Neither is it demonstrated that there is any such necessary connection between the furnaces used and the buildings to inclose them as to prevent the preparation of proper plans and specifications, and a competitive letting of the contract for their construction. If there is any such relation, the record in this case fails to disclose it. Permitting us to judge from the specifications printed in the record, it would seem that the cost of the buildings for the plant will cover quite a la'rge part of the total expenditure. It is not for us to say whether the plan adopted in this case, or some other one, might lead to the best result for the city. We need only to determine whether the line pursued is within charter -limitations or not. * * * It is equally certain that it has not complied with the other provision as to the preparation of plans. If the city has not a sufficiently definite idea of what it wants to cause proper plans and specifications to be made, then it must wait until further information can be secured, or 'the plan has become so far developed as to be more than a long-felt want.”
Said motion is therefore refused.