upon or growing out of the same subject-matter, brought by the same parties against several defendants, although defendants employ different counsel, and the evidence in each case is different. 1 Thompson on Trials, § 210."

The court next reviews the authorities in other states as follows: "In the case of Springfield v. Sleeper, 115 Mass. 587, the facts were three actions on contract, based upon the following instrument in writing and signed by the defendants: 'Provided the city will place granite curbstones around the large trees on North Main street for the purpose of protecting them, we, the subscribers, hereby agree to pay to the city the cost of the curbstones so placed opposite our land on our side of the street.' In passing upon the right to order a consolidation of the three actions, based upon that contract, the supreme court of that state held that it was within the discretion of the presiding judge to order the several actions consolidated and to try them together, although the defendants employed different counsel, and the evidence in each case was different. The same question came before the Supreme Court of New Jersey, where several actions of ejectment were brought by the lessor of the plaintiff upon a mortgage against a number of defendants, and Ewing, Chief Justice, speaking for that court said: "The principle upon which consolidation is ordered is that the same question is to arise in all the actions. The object of consolidation is laudable. It is to save costs; and if we can secure to the parties all their rights, and at the same time prevent unnecessary costs, it is desirable. The doctrine on this subject in the English books is somewhat incongruous. There is a case in 2 Strange, 1149, Smith v. Crabb, where the court refused to consolidate several declarations in ejectment, although it was suggested that the title was the same in all, assigning as a reason for refusal that the lessor might have sued the defendants at different times, and it would be obliging him to go on against all, when, perhaps, he might be ready in some of them only. But in the case of Brimstone v. Burgess, Barnes' Notes, 176, the court of common pleas ordered 16 ejectments suits to be consolidated into one. And in the case of Doe v. Freeman, on a rule to show why the proceedings in 37 actions of ejectment brought against the occupiers of so many houses in Sackville street should not be stayed, and abide the event of a special verdict, Lord Kenyon said it was a scandalous proceeding; that all the causes depend on the same title and ought to be tried by the same record, and ordered the rule to be made absolute. 2 Sell. Prac. 229; 2 Arch. Prac. 180. All these cases assert the power of the court to consolidate in actions of ejectment. Our practice act (Rev. Laws [N. J.] 1821, p. 421, § 58) gives a general power to consolidate unnecessary actions. The authority of the court extends to ejectment, as well as other actions, but in its exercise in the former more difficulty exists and greater caution is required; for though the title

of the lessor be the same, yet where the defendants are different they may have different defenses. And if the actions are consolidated, and the plaintiff recover, and afterwards obtain judgment for the mesne profits, one of the defendants, if another be unable, will be compelled to pay the whole. Notwithstanding, however, these difficulties, the court has the power and they ought in a proper case to be consolidated. We think this is such a case and shall therefore make the order, imposing on the defendants proper terms. There are two modes in which this purpose is effected; the one where the actions are actually consolidated, and the other which may be called a quasi consolidation, where one action is tried and the rest are ordered to abide its event.' Den v. Fen, 14 N. J. Law, 497; Jackson v. Styles, 5 Cow. (N. Y.) 282. Another case, which arose in Massachusetts, was assumpsit on a policy of insurance for $10,000, made by the defendants on the ship Antioch, for the plaintiffs who were owners of one-half of her. After all the evidence was put into the case, the trial judge, before he charged the jury, ordered that at the same time and on the same evidence the case of one Adams, a part owner of the ship, against the same defendants on another policy, should be submitted to the same jury. The cause was appealed to the supreme court, and it was there held that, where several actions in favor of different plaintiffs, but against the same defendant, and depending on the same evidence, and managed by the same counsel (which was the fact in the case at bar), it is within the discretionary power of the judge notwithstanding objections on the part of the defendant to order the actions to be put to the same jury at the same time. Whitherlee v. Ocean Ins. Co., 41 Mass. 67. The same point passed upon in the last-mentioned case came before the Supreme Court of the United States, where several actions were pending upon policies of insurance issued by different companies upon the life of the same individual, but that ruling was based largely upon a statute of the United States. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 292, 12 Sup. Ct. Rep. 909, 36 L. Ed. 706. The rule announced in this case has but little weight in the disposition of the question now under discussion, because it was based upon a statute."

The court next proceeds to show the exclusive nature of the code provision relative to consolidation of actions as follows: "Counsel for neither party have cited us to any authority of this state authorizing a consolidation of actions, except those mentioned in section 749, Rev. St. 1899 [Ann. St. 1906, p. 735]. In a case which came to this court two suits had been consolidated; one was a bill in equity, instituted by the grantor in a deed against the grantee, seeking to have it set aside on the ground that the grantee had broken certain covenants and agreements for support and maintenance therein contained, which constituted the consideration of the deed, and the other was an action at law, brought by the grantee

against the grantor to recover damages alleged to have been sustained by him for having been deprived of the possession of the land described in said deed. The abstract of record states that the court of its own motion consolidated the two suits, but the abstract failed to show any such order was in fact made. In the discussion of the question sugges ted, Valliant, J., said: "The only authority in our code for the consolidation of suits is contained in section 2189, Rev. St. 1889 (section 749, Rev. St. 1899, Ann. St. 1906, p. 735), which is as follows: Whenever several suits founded alone upon liquidated demands shall be pending in the same court by the same plaintiff against the same defendant, or whenever several such suits are pending in the same court by the same plaintiff against several defendants, the court in which the same shall be prosecuted may, in its discretion, if it appears expedient, order such suits to be consolidated into one action.

* * *

*

was

Neither of these suits was of the character referred to in that section. It was error to have ordered their consolidation.' Anderson v. Gains, 156 Mo. 668, 669, 57 S. W. Rep. 726, 727. While it is true the learned judge who wrote that opinion said: The only authority in our code for the consolidation of suits is contained in section 749, Rev. St. 1899 (Ann. St. 1906, p. 735), yet the spirit and the meaning of the decision is that statute is the only authority in this state which authorizes the consolidation of actions. The fact that the order of consolidation was held to be erroneous equivalent to stating that no other authority authorizing such a practice existed in this state; because, if the common-law practice of consolidation relied upon by defendants had existed in this state, then the order of consolidation in that case would not have been held erroneous without, at least, having considered the common-law rule. This question was not presented nor considered by Judge Valliant, but he assumed the statute mentioned was the sole authority in this state authorizing the consolidation of actions by the trial courts. In our judgment that assumption was correct; because the very object and purpose of the practice act was to simplify and codify the common law pleadings and practice, and whenever the statute prescribed a rule of procedure, in the absence of contrary intention appearing that rule should be held to be exclusive and not cumulative, otherwise we would have both the common-law and statutory procedure in force at the same time, as is the effect of the contention in this case. We, therefore, hold the action of the court, ordering a consolidation of the causes mentioned in this record, and trying them at the same time, and largely upon the same evidence, was reversible error."

5. Laws limiting work to union labor.

6. Increase of cost of work as test of validity. 7. The will of the law versus the will of the judge.

1. Confusion in the Judicial Decisions Stated and Illustrated.-The late judicial decisions, respecting the contest for municipal work touching the construction and reconstruction of streets, sewers and drains, where such work is to be paid for by the property owner by special assessment or special taxation levied on property supposed to be benefited on account of the improvement, continue to present a contrariety of opinions on the subject of so-called construction of the laws under which the contracts for such work are let, which require competitive bidding or unrestricted competition. The conflict of opinion in certain judicial decisions was pointed out in a former article in this Journal. 1

2

3

Siegel v. Chicago, a recent decision of the Supreme Court of Illinois, relating to a patented article for street paving commercially known as "Warren's Bitulithic Pavement," etc., Baltimore v. Flack, a Maryland decision, and Warren Bros. Co. v. Barber Asphalt Paving Co.,4 a Michigan decision, involving the same patented article, furnish conflicting judicial utterances as to the proper construction of laws providing for competitive bidding and the public awarding of contracts for street paving to the lowest responsible bidder.

In the Ilinois case it was held that a statute requiring competition in the letting of contracts for the construction of public improvements renders void a provision in a

1 61 Cent. L. J. pp. 204-209. 279 N. E. Rep. 280.

8 64 Atl. Rep. 702.

4 108 N. W. Rep. 652.

public improvement ordinance which tends to restrict competition among persons who may desire to become bidders; and a statute providing that all contracts for the making of any public improvement by special assessment. shall be let to the lowest responsible bidder, construed in connection with other statutes requiring notice to be given that bids will be received for the construction of the improvement, and specifying the manner of awarding the contract to the lowest responsible bidder, contemplates competition in the letting of contracts for public improvements; therefore, a patented material which can be obtained from but one person, cannot lawfully be prescribed by an ordinance providing for the construction of an improvement by special assessment.

The paving ordinance called for bitulithic wearing surface made under patents and processes owned by the Warren Bros. Co. and commercially known and designated as "Warren's Bitulithic Pavement, composed," etc., and to be laid in a specified manner. Warren Bros. Co. made a written proposition to furnish to any bidder material and an expert to give instruction as to building at $1.40 per square yard. The court in declaring the ordinance void said: "The direct effect of the provision of the ordinance requiring the use of the patented wearing surface, therefore, is to restrict the bidding for the construction of the improvement to Warren Bros. Company, or to such persons, firms, or corporations as that company may choose to deal with."

In the Maryland case, the law required the contract to be awarded "to the lowest responsible bidder." Three separate and distinct sets of specifications, each exact and complete in itself, were prepared. One set was for an asphalt block pavement; one, for a vitrified brick pavement; and one, for a bitulithic pavement, being a patented process. Warren Bros. Company made the same proposition as in the Illinois case. Here the court concluded that one of three pavements on which bids had been submitted could be selected and the contract could be awarded to the lowest responsible bidder for the kind of pavement selected, notwithstanding a lower bid had been submitted for some other kind of material. The same conclusion has in 5 Baltimore v. Flack (Md.), 64 Atl. Rep. 702.

prior similar cases been reached in other jurisdictions.6

In the Michigan case, the city of Detroit called for proposals for pavement designated "bitulithic macadam" which was to be laid agreeably to specifications, pointing out the material, method of construction and character of the work required. The Barber Asphalt Paving Co. submitted a bid to lay a pavement averred to be in accordance, substantially, with the specifications without, apparently using the name "bitulithic." Warren Bros. Company sought to restrain the Barber Asphalt Paving Co. from appropriating the good will of the complainants and alleging unfair competition. The relief was refused and the bill was dismissed, the court denying that a case of unfair competition was presented, and holding that the use of a trade mark does not give one the exclusive right to make or sell a given kind of goods, and that the essence of the wrong of unfair competition consists in the sale of the goods of one manufacturer or vendor as those of another. The general rule usually enforced is that, if the law requires competition an ordinance under which the work is let which tends to prevent or restrict competition, being in contravention of such law, is void.

8

Thus in Fishburn v. Chicago," the law exacted competition, but the improvement ordinance required that asphalt obtained from Pitch Lake, in the Island of Trinidad, should be used in making the improvement. It appeared that Pitch Lake was owned by and was under the absolute control of a private corporation. In pronouncing the ordinance void, the Supreme Court of Illinois observed: "An ordinance making it indispensable that an article or substance in the control of but a single person or corporation shall be used in the construction of a public work must necessarily create a monopoly in favor of such

6 Cook v. Detroit, 26 Mich. 263; Holmes v. Detroit, 120 Mich. 226, 77 Am. St. Rep. 587, 45 L. R. A. 121, 79 N. W. Rep. 200; Fones Bros. Hardware Co. v. Erb, 54 Ark. 645, 13 L. R. A. 353, 17 S. W. Rep. 7; 2 Page, Contr., secs. 1048, 1050. Late cases: Saunders v. Iowa City (Iowa), 111 N. W. Rep. 529; Lacoste v. New Orleans (La.), 44 So. Rep. 267.

7 Warren Bros. Co. v. Barber Asphalt Paving Co., 108 N. W. Rep. 652.

8 McChesney v. People, 200 Ill. 146, 65 N. E. Rep. 626, 61 Cent. L. J. 204.

9 171 Ill. 338, 63 Am. St. Rep. 236, 39 L. R. A. 482, 49 N. E. Rep. 532.

person or corporation, and also limit the persons bidding to those who may be able to make the most advantageous terms with the favored person or corporation."

On the other hand many judicial decisions are to the effect that, a municipal charter requiring contracts for public work to be let to the lowest responsible bidder is not violated by awarding street paving contracts to one bidder alone who has a monopoly of the paving material-Trinidad Lake asphalt, or a patented cement as a binding for the macadam used in street improvements-called for in the public advertisement. 10

2. Forms of Competition.-Two chief forms of competition are in vogue. One form calls for bids on several different kinds of material, any one of which is suitable for the work. This form brings bidders on different things in competition with each other. Another form calls for bids on only one kind of material for the work. Competition is thus limited to bidders on the same thing. Some laws require that the kind of pavement to be laid must be determined on in advance of advertising for bids, thus in effect, limiting competition to bids of different contractors on the same material. Some laws allow bids to be advertised for on specifications for different pavements as for brick, asphalt, bituminous macadam, etc. When this is done the contract may be awarded to the bidder whose bid is determined by the authorities to be the most satisfactory, considering material as well as price. Such laws practically leave the whole matter to the judgment of the public officers authorized to award the contract.

3. Reason for the Rule Enforcing the Will of the Law. The rule of the Illinois case results from a strict construction of the provisions exacting competition; therefore, where the law prescribes a particular mode for the exercise of the power to levy special assessments to pay for public improvements that mode must be pursued and no other can be substituted for it by the officers who undertake to exercise it.11

10 61 Cent. L. J. 205.

11 Clark v. Chicago, 186 Ill. 354, 57 N. E. Rep. 15; Kilgallen v. Chicago, 206 Ill. 557, 69 N. E. Rep. 586; Siegel v. Chicago (Ill.), 79 N. E. Rep 280, 283; Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 251, 5 So. Rep. 848; State v. Elizabeth, 35 N. J. L. 351;

Thus the Wisconsin court, in holding that a municipal corporation cannot contract to lay Nicholson pavement where the right to lay it is patented and owned by a single firm, under a charter requiring unrestricted competition, remarked that, the contention that there could be no competition in the letting of the contract "seems unanswerable.

It seems to me therefore a conclusion derivable from the very nature of the case that competition could not be and was not preserved in the letting of this contract and that it was therefore beyond the scope and in violation of the spirit of the charter."12

In one case the California court reasoned: "The power to pave is the power to contract for a pavement, and the power to contract is limited by the mode in which the contract is to be let, and no contract can be made to which that mode can not be beneficially and in good faith applied."

13

And the Court of Appeals of Indiana uses this language: "The statute does not expressly exclude patented pavements; but if the use of a patented pavement wholly nullifies the provision for competitive bidding it is impliedly excluded. If the patented pavement cannot be used without disregarding the provision for competitive bidding its use is as clearly prohibited as it would have been had the statute so stated. It can not be said that this construction is importing a new term into the statute; that it reads into the statute an additional provision to the effect that a street shall not be improved with a patented pavement. Such construction does impliedly exclude a patented article, not because it is a patent, but because of conditions necessarily created and existing under which competitive bidding could not be had. The effect of the construction that should obtain is that these conditions can not be permitted if they result in nullifying a positive statutory provision inserted for the protection and security of the property owner."'14

4. Reason for the Rule Enforcing the Will of the Court.-The reasoning usually advanced to sustain the conclusion reached in

Fineran v. Central Bitulithic Pav. Co. (Ky.), 76 S. W. Rep. 415.

12 Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205. 13 Nicholson Paving Co. v. Painter, 35 Cal. 699. 14 Monaghan v. Indianapolis, 76 N. E. Rep. 424; Seibert v. Indianapolis (Ct. App. Ind.), 81 N. E. Rep. 99.

the Maryland decision is that, the public officers having the matter in charge, in the exercise of a fair and wise discretion may determine that the best interests of the public and property owners demand the laying down of a patented pavement or one requiring the use of material prepared under a patented process, or in the exclusive control of one person, firin or corporation, and hence, the contract is not within the spirit of the law exacting competition, and that a construction should not be given to the law which denies the public from enjoying the benefit of modern inventions in street paving. This may be termed the liberal construction.

Different grounds have been advanced by judicial decisions to sustain such construction. Some courts hold that laws requiring competition do not apply to contracts for patented articles, and hence, in such case competition is not necessary. Others rule that such laws do not prevent the use of a patented article when it appears that no other article of the kind is equally as good. While others take the position that such laws do apply to patented articles, yet the competition exacted is present when bids are called for, since the law presumes that any article of commerce, whether patented or not, is for sale on the market at some reasonable price. Some courts take the ground that while such laws apply to patented articles the competition is secured when the patented article is placed in competition with some other article answering the same general purpose; or that the competition is obtained if the owner of the patented article offers to sell it to any contractor who may bid upon the work, as a whole, at a fixed price. 15

5. Laws Limiting Work to Union Labor will not be sustained; e. g. that only union labor shall be employed on public works. 16

15 Hobart v. Detroit, 17 Mich. 245, 97 Am. Dec. 185; Attorney Gen'l v. Detroit, 26 Mich. 263; Holmes v. Detroit, 120 Mich. 226; Swift v. St. Louis, 180 Mo. 80, 79 S. W. Rep. 172; Verlin v. St. Louis, 131 Mo. 26, 33 S. W. Rep. 480, 36 S. W. Rep. 52; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22, 18 Am. St. Rep. 530, 8 L. R. A. 110, 13 S. W. Rep. 98; In re Dugro, 50 N. Y. 513; Knowles v. New York, 109 N. Y. 185; Mayor v. Bonnell, 57 N. J. L. 424; Schuck v. Reading, 186 Pa. 248; Trapp v. Newport, 115 Ky. 840; State v. Commissioners Shawr nee Co., 57 Kan. 267; Yarnold v. Lawrence, 15 Kan. 126; Baltimore v. Rayno, 68 Md. 569; Field v. Barber Asphalt Pav. Co., 117 Fed. Rep. 925.

16 Fiske v. People, 188 II. 206, 52 L. R. A. 291, 58 N. E. Rep. 985.

So laws requiring printing to bear the union label are uniformly declared to contravene the provision demanding unrestricted competition. 17 In such cases upon the face of the regulation the courts conclude that the restriction must, inevitably, throttle competition and result in unjust discrimination. Therefore, they decline to enter upon the inquiry whether competition was in fact prevented by reason of the restriction and the cost of the work increased thereby. Nor will they enter upon the inquiry whether the work produced by union labor is better than that produced by non-union labor. The rule demanding free competition is rigidly enforced.

The courts have no difficulty whatever in reaching the conclusion that restrictions of this character necessarily limit the doing of such work to a certain class, namely those authorized to use the union label, and therefore, clearly contravene laws requiring open and free competition to all competent bidders. 6. Increase of Cost of Work as Test of Validity. Some cases have, apparently, sanctioned restrictions provided those who are required to pay are not injured thereby. The rule has been announced that if in restricting competition the cost of the work is thereby increased the contract is thus rendered void. This test has been applied in a few cases. a word, the operation of the law or ordinance in the particular case with respect of narrowing competition which results in increase of cost for the work is the criterion. 18

20

In

There are cases in Missouri which have applied this test, notwithstanding these cases These do not show uniformity in result.19 cases were fully considered in a former article by the writer in this Journal. 2 It was there shown that the application of this test in Missouri resulted in two judgments for the contractors and one for the property owner, and, hence, ought not to be enforced by the courts as a sound rule of law. Moreover, the

17 Marshall v. Nashville, 109 Tenn. 495, 71 S. W. Rep. 815, 65 Alb. L. J. 105; Atlanta v. Stein, 111 Ga. 789, 51 L. R. A. 335, 36 S. E. Rep. 932; Holden v. Alton, 179 Ill. 318, 53 N. E. Rep. 556.

18 Adams v. Brennan, 176 Ill. 94, 69 Am. St. Rep. 222, 42 L. R. A. 718, 52 N. E. Rep. 314.

19 Allen v. Labsap, 188 Mo. 692, 87 S. W. Rep. 926; St. Louis Quarry & Construction Co. v. Frost, 90 Mo. App. 687; St. Louis Quarry & Construction Co. v. Von Verson, 81 Mo. App. 519.

20 61 Cent. L. J. 204-209.