Eckerle v. Ferris

1935 OK 1038, 51 P.2d 766, 175 Okla. 107, 1935 Okla. LEXIS 827

Opinions

WELCH, J.

For the purpose of this appeal the facts in material substance are as follows: Plaintiffs are taxpayers of Oklahoma county, and the defendants are members of, and constitute the State Highway Commission.

The defendants advertised for bids on 19 miles of highway construction, being five federal aid roadway construction projects, and one federal aid roadway and bridge construction project situate in three counties of the state.

The plans and specifications provided for the construction of grade and drainage and the construction of permanent rock or gravel base for the highway; for the construction of the necessary bridges and culverts and for a wearing surface or finishing coat of rock asphalt.

As to the finishing coat of rock asphalt, the specifications provided for the use of “blended rock asphalt,” requiring the use of natural sand rock asphalt and natural lime rock asphalt,. and specifying' by percentages the exact proportions of each to he used to constitute the required blended rock asphalt, and providing- the manner of mixing of the natural product, and also providing in detail for the required bitumen content of the lime rock and of the sand rock, and requiring in each instance the use of natural products meeting these specifications, and forbidding the adding of fluxing material or hard asphalt in order to bring the bitumen content within the specified limits. The specifications further required as to the blended rock asphalt that it should be obtained from a source of supply to be approved by the engineer, and from a source of supply or deposits which for a period of at least two years had produced raw rock asphalt which had been laid in pavement, and which had given satisfactory, services when blended in a general manner as provided by the specifications; that the blended rock asphalt should be prepared at a ifiant capable of maintaining the required uniformity of quality at the necessary rate of production; reserving the right to reject further use of any blended rock asphalt which failed to produce satisfactory results in the work, even- when taken from a formerly approved source of supply, until and unless the producer should satisfy the engineer that such material would produce satisfactory results in the work. The specifications further reserved the right to reject material becoming contaminated with' dirt or foreign materials, and with provisions for sampling and testing and the like.

The ’.plaintiffs, as taxpayers, sought to enjoin the- defendants from entering into contracts on these construction projects. The plaintiffs in no manner attack the action of the Highway Commission on the proposed contracts, except in so far only as refers to the traffic surface or finishing coat of rock asphalt. As to that item the plaintiffs contend that- the specifications, providing in detail for the use of blended rock asphalt, are so worded as to result in requiring the use of products obtainable only at one location in the state, where two mines or pits operating together can supply the required product. The plaintiffs say that these specifications thereby wrongfully require the use of products from one specified source of supply, operating to create a monopoly and preventing competitive bidding on the material specified for the top surface of the roadway; that therefore, the action of the defendants is unlawful and involves unlawful expenditures of public funds and should be enjoined, and under temporary order the defendants are forbidden to enter into any contract for the construction of any part of the roadways and bridges of the aforesaid six construction projects.

The petition, however, does show that all bidders on the construction work may purchase the material specified for the finishing coat of the roadway at the same price.

The plaintiffs do not contend that any other produces the same material; but do contend that there are producers of road building material who can, by manufacturing processes, mix sand rock, lime rock and asphalt so as to produce by manufacturing or mixing process a finishing product as good or better than the natural product required by the specifications.

To a petition presenting the above facts and contentions, in substance, the trial court sustained a demurrer upon the ground that the petition did not state facts constituting a cause of action, and the cause is regularly here on appeal from that order and judgment of the trial court. The question for our consideration is whether, upon these allegations, taken as true for the purpose of the demurrer, a cause of action is stated to enjoin the defendants. The question of the capacity of plaintiffs, as general taxpayers, to maintain this suit is not specifically attacked.

The original restraining order was issued in the trial court before the date for receiving bids, and the Highway Commission was restrained from opening bids. That order was modified by agreement to permit the Highway Commission to receive the bids and open the same, though continuing the restraint from entering into any contract. The plaintiffs ' had permission thereafter to amend their petition, hut presented no additional facts indicating any other or .further difficulties in the presenting of bids on the general construction work. and in fact elected to file no amendment to their petition. So that other than as above stated, it is not contended that there were any facts that would or did operate to chill or stifle competitive bidding on the construction work of the various projects.

It is to be noted that the petition does not in any manner purport to charge the defendants with any kind of fraud or collusion. It is merely assorted that to solicit bids and to contract upon the specification so drawn is illegal, as not properly allowing competitive bidding. The plaintiffs in their petition do refer to this as constituting or resulting in a legal fraud, but there is no attack on the motives or good faith of the commissioners.

Our statutes, as shown in chapter 50, O. S. 1931, with amendments as shown in chapter 22, S. L. 1933, and chapter 167, S. L. 1935, and chapter 50, S. L. 1935, place upon the Highway Commission the duty of constructing, controlling, and maintaining our state highways, with broad authority and power in designating the method and manner of construction, type of materials to be used, etc. That commission is authorized to construct roads, upon contracts let on competitive bidding in conjunction with the federal government, as is contemplated in these projects. That commission is also authorized to build roads upon a forced account basis, or by paid labor instead of advertising for bids and contracting for the completed construction. We have in the past constructed roads of various kinds of material, and we have constructed and prepared roads and maintained them by day labor, and by convict labor. The Highway Commission is specifically authorized to purchase machinery, supplies, and road building material, necessary to carry out the purpose of the law tc construct highways. There is also authority in proper cases to take, by condemnation proceedings, deposits of road building material. In any 'Such case in which the Highway Commission deemed it necessary to acquire any particular or designated materials or supplies, we know of 'no rule of law that would prevent the commission from acquiring that material merely because it could be obtained only from one source of supply. No such restriction is in any manner indicated in the statutory provisions upon the subject. For that matter it does not expressly appear that the plaintiffs here contend for such rule of law.

It is the contention of the plaintiffs that, since the specifications provide for a particular blended rock asphalt which can only be furnished by one producer in strict compliance with the specifications, the statutory provision directing the contract for construction to be let on competitive bidding is necessarily violated. While the defendant contends to the contrary.

Upon analysis, the contention of plaintiffs must be based upon one or the other of two theories: That is, one, that the commission cannot, in any event, specify a material or product which is exclusively owned or controlled, or for which there is only one known source of supply; or, two, that in this case the specification of this rock asphalt having but one known source of supply at this time, the specification thereof operates to violate the direction of the statute as to letting the construction contract on competitive bidding.

From the plaintiffs’ petition and their briefs and argument, they present the cause upon the latter or second theory above stated.

That exact question seems to have first been noticed in the courts about the year 1867, when it was determined one way in Wisconsin, and the other way in Michigan.

In Dean v. Charlton, 23 Wis, 590, 99 Am. Dec. 205, a special assessment case, it was held, in substance, that the specifying of a material or product to be used in the construction work of laying pavement, which was exclusively owned or controlled by one man, violated the provision of law for competitive bidding.

In Hobart v. City of Detroit, 17 Mich. 247, 97 Am. Dec. 185, it was held to the direct contrary, irpon the general theory that the city officials have the right to select the desired material or product to be used, even though exclusively owned or controlled, provided only the contract to perform the contract of laying the pavement is let by competitive bidding, all bidders having the same right to obtain the specified material or product, upon the same terms.

It is to be noted that both these cases involve a patented article or product, and both involve construction work to be paid for by special assessment on individual property owners.

Following its decision in Dean v. Charlton, supra, the same court decided Kilvington v. City of Superior, 83 Wis. 222, 18 L. R. A. 45. It was there held that the specifying of exclusively controlled material to be used in the construction did not violate the provision of law for competitive bidding. That cause also involved a patented material and would be in conflict with Dean v. Charlton, but for the distinction therein noted. That distinction was that the former opinion dealt with special assessment improvements, while the Kilvington Case dealt with construction wort contracted for by the city under its broader general municipal powers, to be paid for from funds of the city, and not through special assessments. The court in its discussion said:

“* * * But in Dean v. Charlton the majority of the court, after commenting upon the case of Harlem Gaslight Co. v. New York, 33 N. Y. 309, expressly disclaimed deciding whether the city might not have contracted for laying such pavement at its own expense, under its general municipal powers, which is really the question here presented. * * *”

In Allen v. Milwaukee, 106 N. W. 1099, 5 L. R. A. (N. S.) 680, the Supreme Court of Wisconsin followed Dean v. Charlton, supra, in a special assessment case, but again noted the distinction between Dean v. Charlton and the Kilvington Case, supra.

This treatment of the question in Wisconsin is interesting, in view of the fact that the case at bar does not involve a case where a city is contracting as the restricted agent of certain property owners against whom special assessments are to be made, but, on the contrary, involves the action of the State Highway Commission with broad statutory powers.

In Fishburn v. City of Chicago, 49 N. E. 532, a special assessment case, the Supreme Court of Illinois followed the rule of Dean v. Charlton, though in that case the situation was burdened with the additional circumstances that the company exclusively owning the specified paving material was also in the business of laying pavement under contract.

A similar situation is shown in Fineran v. Central Bitulithic Paving Co. (Ky.) 76 S. W. 415, where the Supreme Court of Kentucky, in a special assessment ease, followed the same rule. The fact was there emphasized that the company exclusively owning the specified material was also in the construction business and bid on the construction involved and was the only bidder thereon; that under the circumstances shown there could be no other bidder, and, therefore, was no competitive bidding. It is thus indicated in that case that the specified paving material was not available to other bidders. The opposite is true in Hobart v. Detroit, supra, and in other cases hereinafter referred to, and is also true in the case at bar, where the blended rock asphalt is obtainable by all bidders or by any contractor at a fixed price.

Later the Supreme Court of Kentucky, even in a special assessment ease, in City of Springfield v. Hayden, 288 S. W. 337, held that the specifying of rock asphalt from a particular named locality did not violate the provision of law requiring competitive bidding, since the company owning and controlling that product was not in the construction business, but was only in the business of mining and selling the rock, and since it appears that any contractor could buy the material specified.

The specification which was there upheld by the court, as set out in the ordinance, called for the use of “Kentucky rock as-XJhalt,” and provided that:

“The Kentucky rock asphalt shall be the. standard Kentucky rock brand of natural bituminous sandstone which has been mined or quarried from proven deposits of bituminous sandstone in Edmonson county, in the state of Kentucky, and shall be from a site or a place in a geological formation that has produced standard Kentucky rock asphalt which has been used as a successful paving material for a period of five (5) years immediately preceding this date.”

There was further provision in the ordinance that each proposal should be accompanied by a service affidavit showing that the material proposed to be used is at this date in good service condition after five years of use under the present day traffic in three or more roadways, without maintenance or repair due to defects. And that “no bitumen, sand, or other material shall he added to or mechanically mixed with the natural rock asphalt.”

In the ease at bar there was similar specification for the use of the natural rock asphalt, and forbidding the adding thereto of any other material by mechanical mixture, and for the use of material from a source of supply proven by two years’ use.

In the Springfield-I-Iayden Case the ordinance as to specifications, in other places, spoke of the natural rock asphalt to be used, and called it “Kyroek,” which was the trade name of the natural rock asphalt produced from the mines of the Kentucky Rock Asphalt Company in Edmonson coun ty. It was there contended that the ordinance and specifications limiting the construction of the surface to the use of natural rock asphalt mined by the Kentucky Rock Asphalt Company rendered the ordinance yoid. However, the court upheld the specification, giving prominence to the fact that the natural product was obtainable by any contractor, and that the producing company was not in the construction business, and the court upheld as reasonable the provision there requiring proof of five years’ satisfactory use of the product on similar roadways. The court there referred to the former decision of the same court in Fineran v. Central Bitulithic Paving Co., supra, and pointed out that the underlying reason for the decision in the Fineran Case was that the specifications were so arranged that in that case there could be but one bidder on the contract, and that in fact there was but one bidder, that being the company which exclusively owned the specified material, which no one else could obtain in order to carry out the construction contract. In that ease also, as in the case at bar, there was a difference between the cost of the material specified and other material which it was asserted was equally as good for the construction purposes. The similarity of the case and the reasoning there used constitutes this case a strong authority for the upholding of the action of the trial court in the case at bar.

An interesting contrast is presented in Barber Asphalt Co. v. Hunt, 13 S. W. 98, where the Supreme Court of Missouri first considered this question. That court in a special assessment ease upheld the contract upon specification of material exclusively controlled, though the owner of the material was himself the contractor, and stated in the opinion:

“In New York it' has been ruled, under a statute requiring all city work to be let ‘to the lowest bidder,’ that the common council were not prohibited from letting a contract for paving a street with material or in a manner not admitting competitive bids or proposals. In re Dugro, 50 N. Y. 513. This ruling was approvingly followed in Baird v. Mayor, 96 N. Y. 567. Prior to the time the subject was discussed in New York, a similar ruling had been made in Michigan. Hobart v. Detroit, 17 Mich. 246. These cases seem to us to rest upon the correct basis. It certainly was never intended that the city authorities should be unable to make a contract, however necessary to the public welfare such contract might be, if the article desired, or the manner of the performance of the contract required the use of a patented article. Such a construction of the charter we regard as ‘sticking in the bark,’ and as subordinating the whole powers conferred on the common council to the meaning of two or three words contained in a single section of the charter. Besides, the rights of those interested are protected by the necessity of obtaining the approval of the council to any contract. A different view of the matter under discussion has been taken in Wisconsin (Dean v. Charlton, 23 Wis. 590), but by a divided court; and it is noteworthy that the Legislature of that state did not approve the view of the statute taken by the court, and so changed the statute, so as to prevent the continued prevalence of the objectionable ruling. (Mills v. Charlton, 29 Wis. 400; Dean v. Borchsenius, 30 Wis. 239.)”

In Siegel v. Chicago, 79 N. E. 280, the Supreme Court of Illinois considered a special assessment case involving patented material, and which cited and followed Dean v. Charlton, Fishburn v. Chicago, and Fineran v. Central Bitulithic Paving Co., supra. This case follows the rule contended for by plaintiffs, in a special assessment case, but refers to the opposing authorities headed by the parent case of Hobart v. Detroit, 17 Mich. 245. In this case, on page 283 of the Northeastern Reporter, it is pointed out that the authorities following the rule contended for by plaintiffs did so upon a strict construction of the statutes as to competitive bidding, while the authorities holding otherwise, that is, to the view contended for by defendants, Highway Commission, arrive at their conclusion by a liberal construction of the statute. In the body of the opinion it was said:

“It has been heretofore decided by this-court that our statute on local improvements, delegating, as it does, to municipalities the power to levy special assessments to pay for public improvements, is to be strictly construed, and that where the statute provides a particular mode for the exercise of such power that mode must be pursued, and no other' can be substituted for it by the officers who undertake to exercise it.” ,

The court then concluded that the specification of material exclusively owned was unlawful, in case of the exclusive ownership of the material, “but for the reason that if it is so prescribed, competition, so far as furnishing that material is concerned, must be, and is, entirely absent.” Thus that court adhered firmly to the strict construction rule as applied to special assess ment cases, which has heretofore been announced by that court.

It would seem from that authority that the foundation of the strict construction rule is wholly absent from the case at bar. It would also seem from the reasoning of the Illinois court in that case that even in those states following the strict construction rule in special assessment cases, the liberal construction rule would apply in cases such as the case at bar where no special assessment is involved. That thought is confirmed by the fact that the state of Wisconsin, the parent state of the strict construction rule in special assessment eases, specifically declined to apply that rule in a later case which did not involve a special assessment, that is, Kilvington v. City of Superior, 18 L. R. A. 45.

Some years later, in Village of Rossville v. Smith, 100 N. E. 292, the Supreme Court of Illinois again considered this question in a special assessment case. There the specifications were set out in minute detail, which do not in the face of the specification show exclusive ownership of the required material, but in fact the specifications as prepared did so result (similar in that respect to our highway case). The court there cited and followed the Fishburn v. Chicago and Siegel v. Chicago Cases, and again emphasized the fact that the rule would be followed in special assessment cases, applying to such case the strict construction rule as in the Siegel Case. The court there indicated by clear statement that exclusive ownership under patent was no different from other exclusive ownership. To the same general effect is the later decision of the same court in Schoellkopf v. Chicago (Ill.) 128 N. E. 337, another special assessment case where the same strict construction rule is followed.

Tn Smith v. Syracuse Improvement Co. (N. Y.) 55 N. E. 1077, in a special assessment case, it was held improper to specify that the street should be paved “with vitrified paving brick manufactured by the New York Brick & Paving Co.,” since other companies manufactured the same vitrified paving brick as good as that of the specified company, and therefore this specification did stifle and wrongfully interfere with competitive bidding.

That seems clearly distinguished from our highway case on the facts, and it seems certain that at least in a special assessment case the authorities could not specify a paving product on the general market, manufactured by several competing persons, and specify that the product of only one, calling him by name, should be used in the construction work.

In Redersheimer v. Flower, Mayor (La.) 28 So. 299, we have another special assessment case. This is relied upon or strongly asserted as sustaining the plaintiffs’ view. We are unable to find it much in point. It is true the letting of the contract was vacated, but the fact appears to be that it was vacated because the contract was awarded to one Spinks at $2.58 per square yard, whereas one Kelly had tendered his bid of $2.40 per square yard, the law requiring that the contract be let to the lowest responsible bidder.

The city officials for some reason, not fully disclosed in the opinion, awarded the contract to the highest of these two bidders. The fact statement shows that the city authorities advertised for bids upon natural rock asphalt, and also upon artificial or manufactured sheet asphalt, the one being there considered of equal value to the other, and the opinion states there was • no material difference. That being so, the case seems to turn on the fact that the contract was not given to the lowest bidder. (A point not present at all in the case at bar.)

In that ease there was objection to the method of specifying the natural rock asphalt, in that it specified foreign asphalt from the Sicilian mine at Regosa, or from the Swiss mines at Val de Travers and the French mines at Seysel. It is made clear in the opinion that since the awarding of the contract must be vacated, that it is the view of the court that in a further letting the authorities should be more liberal in their specifications as to rock asphalt, so as to include domestic rock asphalt.

This ease is not thoroughly written as to either facts or law. It cites no authority except Berghoffen v. City of New York, 64 N. Y. Supp. 1082, as sustaining the conclusion that two years’ wearing time of asphalt is a sufficient guarantee as to quality used.

In Grace v. Forbes, Mayor, et al. (N. Y.) 118 N. Y. Supp. 1062, the court considered one of the few cases found not involving construction by special assessment. That is an action for injunction by taxpayers, and seems at first glance to be the one case cited by plaintiffs which supports their contentions in such cases as the case at bar. But we find it in point but slightly, if at all. It seems that the decision of the court is based upon the construction of -a peculiar statute requiring, in substance, that all contracts for supplies or construction be let on competitive bidding and to tbe lowest bidder, unless tbe common council concludes, with unanimous approval of tbe board of estimate and apportionment, that it is impracticable to procure sucb work or material by contract. Tbe city desired to install a fire alarm system, and desired to bave the system installed by tbe Gamewell Fire Alarm Telegraph Company, which company held numerous patents on tbe various pieces of ax>paratus that would go to make up sucb a completed system. It is made apparent from tbe opinion that those favoring this special fire alarm system were unable to get tbe unanimous vote of tbe common council and the unanimous approval of tbe board of estimate and apportionment, and therefore, they prepared specifications which apparently were taken from the letters patent of the Gamewell Company, in that they described in the most minute detail the character and size of the apparatus, even to the smallest parts of instruments, and the manner in which the system and each part thereof should operate, so that by no possibility could anyone bid upon this specification except the Gamewell Company, which manufactured and installed its own type of system. Clearly in that case there could be no competition. The law there provided the method by which the city could contract without competition, and also provided a method for contract by competitive bidding, and the court held that there being a method for contracting without competitive bids, that method must be followed, or, upon the other hand, the contract must be by competitive bids.

No such special statute governs the contracting by the Oklahoma Highway Commission, and, therefore, the case is of but little assistance here.

In Verdin v. City of St. Louis, 33 S. W. 480, the Supreme Court of Missouri considered a special assessment case, specifying Lake Trinidad asphalt; not patented, but exclusively owned by the contractor. The contract was upheld notwithstanding exclusive ownership. Aside from special assessment difference, this case is very interesting in our highway case, as the facts alleged and taken as true on demurrer in the Verdin Case were that there are other sources of supply of asphalt of just as good quality for other purposes as Trinidad Lake asphalt. The petition alleged similar facts as to extra costs and is quite similar to case, except ns to the special assessment feature. Syllabus 4 reading as follows:

“An ordinance providing for paving a street with a particular kind of asphalt, in which there is a monopoly, is not void, though the city charter provides for letting contracts to the lowest responsible bidder.”

In general language the court in this case treats patented material the same as exclusively owned material, and cites and follows the former decision in Barber Asphalt Co. v. Hunt, supra.

Later, the same court in Swift v. City of St. Louis, 79 S. W. 172, considered a special assessment ease specifying for use in the final or finishing coat of the roadway a semi-liquid composition known as “Warren Puritan Brand.” These Warren substances were not patented, but were manufactured under that trade name and were so specified. The Warren Bros, did not contract construction, but only manufactured and sold the material. The contract was upheld. The court cited Barber Asphalt Paving Co. v. Hunt (Mo.) 13 S. W. 98, being a patent case, and Verdin v. City of St. Louis (Mo.) 33 S. W. 480, where the monopoly was based, not upon a patent, but upon exclusive ownership of the specified source of supply. In that case the monopoly existed by specifying a certain manufactured product by name of the manufacturer. In that ease it was insisted that it was wrong to specify the material by name of the manufacturer, but that the material ought to have been designated indirectly by its constituent parts, or by making the Wa'rren Bros, product the standard.

In the case at bar the specifications did not specify the rock asphalt by exact location or name of the owner, but did specify it indirectly by listing the component parts. That is, flie specification here was opposite to the specification in the Swift Case, and the contention is here made that the specification should have been made by specifying the source of supply or the ownership by name.

In Mueller v. Boulevard Com’rs of Hudson County et al., 94 Atl. 84, the New Jersey court considered a special assessment case and held as follows:

“Boulevard commissioners may provide for the paving of a street with a material obtainable from only one party, where it is in the market and can be obtained by the bidders.”

In Monaghan v. City of Indianapolis, 76 N. E. 424, the Indiana Supreme Court considered a specification of patent material. This case emphasizes the fact that it is a special assessment case and follows the rule in Dean v. Charlton, that is, the Wisconsin rule, but points out that in a later Wisconsin case, Kilvington v. City of Superior, the Wisconsin court held otherwise and distinguished that case, which was not a special assessment case.

This opinion, at page 42G of the Northeastern Reporter, points out clearly that there can be no difference in specifying a patented pavement on the one hand, and upon the other hand specifying a pavement which is not patented, but which is in fact owned and controlled by a single individual.

And in this opinion, on page 428 of Northeastern Reporter, it is clearly pointed out that if a part of the ingredients specified to be used in constructing a road are in the control of a single individual, but have a fixed price or market value' at which they may bo purchased for use by the contractor, and the board knows that fact, and such ingredients could be purchased by anyone desiring to purchase them for use in carrying out the contract, that in that event a competitive bidding provision would not be violated.

In the body of the opinion in that case it was stated:

“It must be admitted that the. same reasoning that excludes a patented pavement would exclude a pavement not patented, but which is owned and controlled by a single individual.”

From the reasoning there it would necessarily follow that in states where the specification of patented pavement is permitted, likewise in those states there would be permitted the specification of material for paving not patented, but which is owned and controlled by a single individual.

In Mayor, etc., of City of Newark v. Bonnell, 31 Atl. 408, this question was again considered in New Jersey.’ The entire syllabus is as follows:

“Where the proper municipal board advertises in good faith for proposals for paving streets, and specifies the employment of the material deemed by it to be for the best interest of the municipality, the city is not debarred by any rule of law from contracting for what it wants merely because the desired material is the subject- of private ownership or the product of exclusive manufacture.”

It is not clear whether this is a special assessment case, but from the facts stated we assume that it is not.

The Supreme Court of Iowa in two cases, Saunders v. City of Iowa, 134 Iowa, 132, 111 N. W. 529, 9 L. R. A. (N. S.) 392, and in Hoffman v. City of Muscatine, 232 N. W. 430, 77 A. L. R. 680, held that provision for competitive bidding was not necessarily violated even in cases where the exclusive owner of the specified material was himself a bidder on the project to be constructed by the use of the material exclusively owned.

The distinction seems to be that a strict rule of construction was followed in those cases holding to the rule contended for by the plaintiffs, while a rule of liberal construction of the statute requiring competitive bidding was followed by those states holding to rule contended for by the defendant. It has been so stated in the decisions.

However, as to the authorities relied upon by the plaintiffs, it is to be noted that they are cases dealing with construction projects upon special assessments. In such case it might well be said that the right to levy the special assessment to pay for the construction would depend upon a strict following of the statute as to contracting for the construction. That seems to have been the theory of the application of the strict construction rule in those eases. The reasoning in those cases can in no sense apply to the ease at bar, where no assessment is necessary to pay for the construction work, birt where, on the contrary, the state has provided the Highway Commission with funds for road construction, giving them broad powers in designing the roads to be made, and in selecting the materials to be used and in prescribing the method of road construction. It seems beyond question that with such authority reposed in the Highway Commission the rule of liberal construction should be applied in the case at bar. And in view of the broad powers granted the Highway Commission it must have been that the legislative intent was and is in harmony with this thought. It must be true that the power of the officers of the city in letting construction contracts, where the cost is to be paid from special assessments, would be far more restricted than the power of the Highway Commission in the case at bar.

With these former decisions from other states as persuasive authority, our own court first considered the question in Reed v. Rockliff-Gibson Construction Co., 25 Okla. 633, 107 P. 168. That was a special assessment ease; nevertheless this court followed the view of liberal construction as pioneered by Hobart v. Detroit, 17 Mich. 246, 97 Am. Dec. 185, and followed by numerous other states, and held that the specifying of exclusively controlled paving material, designated by name, did not violate the provision of law requiring competitive bidding, since the material or product specified was obtainable at a fixed price by any bidder and by the ultimate contractor on the successful bid.

In that case this court reviewed the former authorities and found that the rule adopted was supported by the great weight of authority, and that by agreement of the great weight of authority and modern text writers this rule is the better sustained by reason, citing MeQuillin on Municipal Ordinances, Elliott on Roads and Streets, and many court decisions.

The plaintiffs here suggest that the cases involving patented products are not applicable in the same sense as cases involving-products exclusively owned and controlled, but not patented. We conclude that such distinction is more fanciful than real. If one person exclusively owns and controls a certain product or material which is specified to be used in construction work, then, in so far as concerns the question of competitive bidding, what difference can it make whether such owner’s exclusive control is based upon patent rights or upon the fact that he owns the only natura1 deposit of such material thus far discovered? Exclusive ownership either one way or the other is noticed as being the same in'the following eases: Siegel v. City of Chicago (Ill.) 79 N. E. 280; Village of Rossville v. Smith (Ill.) 100 N. E. 292; Monaghan v. City of Indianapolis (Ind. App.) 76 N. E. 424.

In event of either such exclusive ownership, a bidder and contractor agreeing to do construction work and use that product or material must procure it from whence it is available, that is, from the exclusive owner. If A, by inventive genius, perfect a product and is the first so to do, then he exclusively owns the process until some one else should make the same discovery. He may prolong his exclusive ownership in certain cases by patent rights. If B, by prospective industry, discovers and becomes the owner of a natural deposit of a favorable substance and is the first to discover the same, then he likewise is the exclusive owner of such a product until some other person with equal industry discovers another such natural deposit. Each ownership is exclusive within certain limitations. Indeed, if any distinction were made, we think we might more readily permit the use ■ of exclusively owned natural resources or products than a patented article or product. The patented article is exclusively owned, and that exclusion is affirmatively protected by law, while the ownership which is exclusive by reason of being the only discovered natural source of supply is not protected in law and the exclusive character of that ownership may be destroyed any day by discovery of additional such deposits. It is not to be assumed that nature, in her great abundance to Oklahoma, had deposited at only one point in the state a deposit of asphalt, sandstone, or limestone in the i>roportions specified. It may be that up to this time no such identical deposit has ‘been discovered. It is so alleged in plaintiffs’ petition, and upon demurrer is taken as true, but, if so, the exclusiveness of that ownership of this material may be destroyed any day by the discovery of additional such deposits.'

So that it seems that this court by its decision in Reed v. Rockliff-Gibson, supra, is committed to the proposition that the specifying of exclusively owned paving material does not necessarily violate the provision of law for competitive bidding, and from all the authorities the true rule must be that such specifications do not stifle, destroy, or hinder competitive bidding, if under the circumstances of the given case the bidding on the construction work with the use of the specified material is competitive.

A prospective contractor would hardly bid on any project without first ascertaining where he can obtain the iron, steel, gravel, asphalt, machinery, and supplies with which to perform the contract. .If the specifications require a product exclusively owned, he would ascertain the cost of that portion of the material, as he would ascertain the cost of all other materials to be used by him in completing the project. What difference can it make to the bidders where, or from how many persons, the required material is obtainable, if it in fact is readily obtainable, and if it is obtainable alike by all bidders at a fixed price?

The plaintiffs’ petition shows that this material is so obtainable, and there is nothing in the petition to indicate that the actual bidding on these projects was in fact stifled or hindered. After the bids were received and opened, there was no further allegation or presentation of facts showing any such interference with competitive bidding. It seems that if any difficulty or hindrance had been encountered in the bidding, some prospective bidder would have observed it. We held in Reed v. Rockliff-Gibson, supra, that the competitive bidding-provision was not violated, and upon that rule we must say that plaintiffs’ petition here does not show any violation of the competitive bidding provision by reason of the specifications here involved.

We conclude that the weight of authority and the better reasoned cases follow the rule as contended for by the defendant, that the specifying of, or requiring the use of, a material produced exclusively does not necessarily violate .statutory provisions for competitive bidding upon the construction project where the owner or producer of the material is not himself a bidder on the construction project and is ready and willing- to sell his project to any bidder on the project at the same price.

We come now to another phase of plaintiffs’ complaint which is not mentioned in plaintiffs’ brief, but was stated in the original petition. That has to do with the price of the specified blended rock asphalt, and with the ultimate cost of the' finishing coat of the roadway. The petition alleges, in substance, that the price at which the blended rock asphalt is sold by the producer thereof nets him an excessive profit per ton, and that with transportation cost added the ultimate cost of the roadway will be excessive. The plaintiffs assert that suitable artificially mixed asphalt, similar, and, as plaintiffs allege, as good as superior in quality to the natural product, can be furnished on road projects at a cheaper price per ton, and that if the specifications could be modified so as to permit the use of such material, the use. of that material in the finishing coat of the roadway would amount to a substantial saving-in the ultimate cost of the six construction projects.

The plaintiffs file an extensive brief citing many authorities and presenting their argument upon the theory that competitive bidding- is not allowed- on the specifications by reason of the specified material required to be used, but therein make no mention of the price or cost, and therein present no argument or contention thereon. Under the general rule we would be justified in treating that contention as abandoned, but, nevertheless, we deem it our dirty to notice the allegations of the petition, since this is a public question and deals with the expenditure of public funds.

It is to be noted that the petition does not allege that the Highway Commission knowingly specified the use of a construction material of excessive cost to the tax-Xiayers, nor that these specifications were prepared with the corrupt motive of permitting any excessive profit to be realized upon the natural material siiecified. In its final analysis this allegation of the petition is nothing more than an allegation that if the Highway Commission had permitted the use of another artificially mixed product, which the plaintiffs deem to be just as good or better than the natural product, a saving would thereby have resulted in the funds of the Highway Commission.

Our statute specifically authorizes the Highway Commission to designate the place where roads are to be built, the type of road construction, and the material of which the various roads are to be constructed. So we have roads in Oklahoma composed of various and different materials. The legislative intent is indicated that the Highway Commission would use its best judgment in each case as to the type of road to be built and the material to be used therein, and in the absence of fraud, corruption, improper motive, plain disregard of duty, gross abuse of power, or violation of the law, that discretion should not be interfered with or controlled by judicial power.

We have found that the act of the commissioners in submitting this project upon the specifications involved did not violate the competitive bidding requirement, and, therefore, was not in violation of the law. Surely our statutory provisions clothe the Highway Commission with power, in their sound judgment, to designate the particular product to be used in constructing the traffic .surface of the roadway, and there is no allegation in the petition upon which it could be said that the commission was guilty of gross abuse of discretion or guilty of fraud, corruption, improper motive, plain disregard of duty, or gross abuse of its power.

It may be that the plaintiffs only intended these allegations in their petition to complement their allegations presenting their theory of violation of the competitive bidding requirement. That conclusion is indicated by the fact that these allegations are not referred to in plaintiffs’ brief. Our statute and decisions furnish ample ground for relief when any sucli act is unlawful, fraudulent, corrupt, or constitutes a gross abuse of power, but it can hardly be the rule that a citizen, although he is one among the multitude of the taxpayers of the state, may stoj) the progress of road construction work merely upon his allegation that his road building material or product, or some other product different from that required and specified by the Highway Commission, is just as good as the material specified, and can be procured and laid in road construction work at a lesser- cost, resulting in a saving to the taxpayers. To so hold would violate the clear legislative intent that the Highway Commission should have control of the construction and maintenance of the highways. It may be that many governmental expenditures in the past and in the future could be reduced by the use of different, cheaper, or less expensive material, but in large measure thfit is always a question to be determined by the individual or board making the expenditure, and that item is not ordinarily a question for control by the courts. While the courts do freely act when a cause is presented justifying judicial interference, we do not find such facts presented here.

In Moore v. Porterfield, 113 Okla. 234, 241 P. 346, this court noticed the general rule that the discretionary powers of public officials would not be controlled by injunction, and there stated the exception to be that injunction would be issued only “in case of a gross abuse of such discretion, or where it appears that such action is founded on fraud, corruption, improper motive, plain disregard of duty, gross abuse of power, or violation of the law.”

In Furgason v. Mitchell, 128 Okla. 232, 262 P. 500, we held:

“The proper officials are charged with the repair and maintenance of public highways, and, while acting in the scope of their authority, they are vested with a very broad discretion, with which courts will not interfere, by granting injunctive relief, except in cases of fraud, or where there is a manifest or gross injustice which would constitute an abuse of discretion.”

In Hawkes v. Seay, 150 Okla. 160, 1 P. (2d) 148, we held:

“The State Highway Commission is created and vested with powers and duties necessary to fully and effectively carry out all of the objects of the act creating it, and when acting consistently with said act, it cannot be enjoined from using the funds in its possession and under its control in constructing and improving highways which it is authorized to construct and maintain, except such funds as are raised by the issuing of bonds or taxation for a designated purpose; such funds must be used for the purpose raised and designated.”

The case at bar involves no such specially raised funds, but, on the contrary, concerns funds raised for the general road building program of the state, under complete supervision of the Highway Commission.

AVe conclude that the State Highway Commission has complete supervision and control of the construction and maintenance fund, and has both the duty and the right to use its own judgment and discretion in the character and type of road it builds, and that such discretionary power cannot be enjoined upon the facts alleged by plaintiff. This conclusion is supported by provisions of our statute in the following sections of O. S. 1931, to wit: 10089, 10091, as amended by chapter 22, S. L. 1933, 10106, 10124, as amended by chapter 167, S. L. 1933, Sess. Laws 1935, c. 50, art. 2, pages 211 to 212; and by the following additional citations of this court: Allen v. Board of Commissioners of Logan County, 131 Okla. 41, 267 P. 860; Leininger v. H. L. Cannady Co., 139 Okla. 301, 282 P. 474; Wentz v. Ingenthron, 146 Okla. 165, 294 P. 154; Boyle v. Rock Island Coal Mining Co., 125 Okla. 137, 256 P. 883, and Whittington v. Dyer, etc., 130 Okla. 38, 265 P. 126.

As to the specification requiring material from a two-year proven source of supply, we find that Kentucky has approved a five-year use test specification, and New York and Louisiana have both approved a two-year use test specification. See City of Springfield v. Hayden, Rederscheimer v. Flower, supra, and Berghoffen v. City of New York, supra.

For the reasons stated, it follows that the judgment of the trial court was correct, and it is affirmed.

McNEILL, C. .T., OSBOBN, V. C. and PHELPS, COBN, and GIBSON, JJ., concur. BILEY and BUSBY, JJ., dissent. BAYLESS, J„ absent.