Ford v. City of Great Falls

127 P. 1004 | Mont. | 1912

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The city council of the city of Great Falls, having determined that it was of public concern that a portion of one of its streets, designated as First avenue north, be paved, caused the city engineer to prepare plans and specifications for the proposed improvement, and also an estimate of its cost. This he did. The property abutting on the portion of the street to be paved is described as “embracing each and every lot in the south half of blocks 307, 308, 309, 310, and 311, and in the north half of blocks 312, 313, 314, and 315.” These include all lots fronting on the avenue from the west line of Park Drive to the east line of Sixth street. Lots 8 to 14, inclusive, in block 310, belong to the United States, being occupied by the federal building. The engineer’s specifications contained this paragraph: “Attention of all contractors is called to the agreement of Warren Brothers Company, filed with this city, in accordance with which agreement Warren Brothers Company agrees to license all contractors desiring to bid for the work to lay the bitulithic pavement in accordance with its patent and terms of said agreement.” The following is a copy of this agreement:

“Boston, July 6, 1911.

“To the Honorable Mayor and City Council of Great Falls, Montana—

“Gentlemen: Inasmuch as it is deemed advisable by the proper authorities that bids be received for the improvement of certain streets in the city of Great Falls, state of Montana, with the bitulithic pavement; and inasmuch as the construction of said pavement requires the use of certain patented processes and compounds; and inasmuch as competitive bidding in the letting of contracts for street improvements is deemed advisable, in order to provide for such competitive bidding and at the same time secure the adoption of the bitulithic pavement as the kind of pavement to be constructed in such streets as may hereafter be determined, the undersigned Warren Brothers Company, as owners of all patents and processes covering the laying of said bitulithic pavement, hereby proposes and agrees for the consideration hereinafter named, to furnish to the city of' Great Falls, or to any bidder to whom a contract may be awarded to pave any street or streets in the city of Great Falls with bitulithic pavement at any time within one year after this date or at any time thereafter until this proposition is formally withdrawn, and who shall enter into a contract with such surety or sureties as may be required by-said city of Great Falls, the following material ready for use coupled with a free license to use any or all patents, trademarks, or trade names now owned or which may hereafter be owned by Warren Brothers Company necessary to lay said pavement:

“ (1) The necessary roadway mixture for the wearing surface having a thickness of two (2),inches after compression, prepared under the patent processes of Warren Brothers Company, and delivered hot in the wagons of the city or contractor at the bitulithic mixing plant, located in the city of Great Falls, said plant to be located within three (3) miles of the work .to be performed.

“(2) The right to use any and all patents, trademarks and trade names now owned or which may hereafter be owned or controlled by Warren Brothers Company, which are necessary to be used in the laying of such pavement.

“ (3) The bituminous flues coating cement, necessary for coating the wearing surfaces, delivered on wagons of the city or contractor at the bitulithic mixing plant, located as above. “ (4) An expert who will give proper advice as to the building of such pavement will be furnished to the city or contractor, at the expense of Warren Brothers Company.

“(5) Two daily examinations of the mixture as delivered on the street will be made at the laboratory of Warren Brothers Company to determine if uniformity has been accomplished in the mixture and construction, and reports thereof will be made to the proper city authorities; said samples to be sent prepaid to the laboratory of Warren Brothers Company, Water street, East Cambridge, Mass., by the city or contractor.

“The price at which this service is offered to any and all contractors who made a bid on the bitulithie pavement in the city of Great Falls, state of Montana, is one and 50/100 dollars ($1.50) per square yard of finished pavement, at which price it is also agreed to furnish the mixture for making all repairs, if any, which may be necessary for the wearing surface, during the life of said patents, f. o. b. Great Falls, in barrels for reheating.

“The accepting of the bids by your city, and the letting of a contract for the same, is all that shall be necessary to bind Warren Brothers Company to this agreement.

“The above agreement made with the understanding that it applies only to contracts, work on which can be performed continuously, aggregating not less than ten thousand (10,000) square yards.”

The specifications included an estimate of the cost of the entire improvement in. case bitulithie pavement should be used, fixed at $40,000. Of this amount, $26,200 was apportioned to the abutting property, making the amounts assessable to each lot, excluding those belonging to the United States, $420. The remainder was charged to the city. Prior to any definite action by the council, a majority of the persons owning lots abutting on the portion of the avenue to be improved had by address to the council recommended that it require the use of bitulithie pavement. On September 16, 1912, the council passed a resolution for the pavement of the designated portion of the avenue, declaring that it was its intention to cause it to be paved, if on or before September 23 objection in writing should not be made- by the owners of two-thirds of the property to be affected or benefited. The resolution adopted the plans and specifications of the engineer, ordered the work to be done in accordance therewith, fixed a day for hearing objections, and directed the clerk to give five days’ notice by publication in a daily newspaper published in the city. It specifically required bids to be made upon the basis of the use of the processes and compounds covered by the "Warren Bros, patent. It directed that $26,200 of the cost of the improvement be assessed against the abutting lots and be paid by the owners of them, excluding those owned by the United States, and that the cost of the portion in front of the latter, and at the intersection of cross-streets and alleys, be a charge against the city and paid out of its street fund. It required the amount assessed against each lot to be paid in a single installment and within one year from the completion of the improvement. The cost of the portion of the improvement in front of the lots owned by the United States government was made a charge against the street fund, under an ordinance of the city theretofore enacted as ordinance No. 362, which declares, in effect, that the cost of any improvement upon any street made under section 3386 of the Bevised Codes, in front of property belonging to the city, the state of Montana, or the United States, shall be a charge against the city. It further declares that, upon the final adoption of the resolution for any such improvement, the city shall be obligated to pay the cost of the portion of it in front of property held by such public ownership, and that upon its completion the mayor and clerk are authorized, and it shall be their duty to issue warrants of the city drawn upon its street fund for the amounts due and payable in that behalf. Upon the adoption of the resolution, the council caused to be published the following notice:

“Notice is hereby given that the undersigned at his office in the courthouse, Great Falls, Montana, will receive sealed proposals until 8 o’clock p. m., September 30, 1912, for the furnishing of all labor, tools, materials, and appliances for the construction of a bitulithic pavement on a concrete base, together with all necessary sewerage and grading, as shown on the plans filed in the office of the city engineer on First avenue north from the west line of Park Drive to the east line of Sixth street. The city council reserves the right to reject any or all bids or to waive defects and accept any bid.

“W. H. Harrison, City Clerk.”

The plaintiff, a resident of the city, is the owner of property abutting upon First avenue and subject to assessment for its proportionate share of the cost of the improvement. He is also the owner of a large amount of other property in the city upon which he pays taxes. On September 23 he filed with the city clerk his written protest and objection to the improvement. What, if any, action was taken with reference to it does not appear. Thereupon he brought this action for an injunction to restrain the defendant and its council from letting a contract to anyone to have the contemplated work done, on the grounds (1) that the city council is without jurisdiction to order the improvement, because ordinance 362 and the resolution passed in pursuance thereof are void in that the ordinance does not provide a system for doing the work of improvement, as is required by section 3369, Revised Codes, and because it imposes upon the city the obligation to pay the cost of the improvement in front of the property belonging to the United States; and (2) that the resolution is also void because it requires all bidders to use the processes and compounds covered by the patent of the Warren Bros. Company, and hence does not permit competition as is required by section 3278, Revised Codes. The cause is before this court on appeal by the plaintiff from an order of the district court refusing the injunction.

Among the general powers conferred upon a municipality are the following: “To lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds, and vacate the same.” (Rev. Codes, sec. 3259, subsec. 6.) “To create special improvement districts, designating the same by number; to extend the time for payment of assessments levied upon such districts for the improvements thereon for a period not exceeding three years; to make such assessments payable in installments and to pay all expenses of whatever character incurred in making such improvements, with special improvement warrants, which warrants shall bear interest at a rate not to exceed six per centum per annum.” {Id., subsee. 80.) In addition to the power thus conferred to levy assessments and make improvements, it has power to collect a poll tax upon ail able-bodied inhabitants between the ages of twenty-one and forty-five years (section 3361); this tax must be expended for street purposes (section 3364). The council is empowered to order any work upon its streets, alleys, or public places authorized by the title relating to the government of cities and towns. (Section 3365.) We find in sections 3367-3429 an elaborate system providing for the making of special improvements, including the laying of sidewalks, the paving of streets, the building of sewers, and providing the means to defray the necessary expenses. Section 3367, after again conferring ,the power to order street improvements, declares that the municipality shall have charge of the building of all sidewalks, and may have the work done by contract, by the street commissioner, or any authorized officer, but with the proviso that the cost of building and maintaining them shall be borne by the owners of the abutting property.

In view of the general powers conferred upon the council by the foregoing provisions, in the absence of any other provisions as to the method of procedure and the payment of expenses, on the principle that the grant of a power to do a particular thing implies also all the incidental powers necessary to carry it into effect, the council would have authority to order any necessary improvements and meet the expense of them by appropriations from any .fund in its treasury available for that purpose and not otherwise appropriated. In ordering the improvement in question, the council adopted the course prescribed by sections 3369, 3370, and 3386. Section 3369 provides: “The city or town council, is authorized to provide by ordinance a system for doing any or all work, -in or upon the streets, highways or public places of the city or town, and for making thereon street improvements and repairs, and for doing any or all work authorized by this Act, and for the payment of the cost and expenses thereof. In all cases where any part of the expense of any such improvement, except constructing sidewalks, gutters or making necessary repairing, is to be defrayed by special assessment, the council must first adopt a resolution declaring its intention to make such improvement, and fix a time at which objections to the making of such improvements will be considered.” Section 3370 provides that the resolution shall designate the boundaries of the district to be affected or benefited; that notice shall be given by publication in a newspaper, or by posting, or by service upon the owners or agents of the property to be affected; that the notice shall prescribe the improvement, state the estimated cost, and designate a time for a hearing; and that, unless written objection be filed with the clerk on or before the time so appointed, the council acquires jurisdiction to order the improvement. Section 3386 reads as follows : “To defray the cost of paving, macadamizing or similarly improving any street, together with the cost of catch basins, storm drains to some main line of drainage, and appurtenances thereto, the city or town council shall assess the entire cost thereof, except the cost of paving and cross-walks, at the street and alley intersections and any amount which may be payable by any person or corporation occupying any part of any street under a franchise, as a special tax against the property bordering or abutting said streets, in proportion to the linear feet abutting or bordering the same.”

The procedure pursued by the council with reference to the improvement in question appears to have been in strict conformity with these provisions, and it acquired jurisdiction to proceed unless it is incumbent upon every city or town council, before ordering any special improvement, “to provide by ordinance a system for doing any of all work upon the streets, highways, etc., * * * and for the payment of the cost and expenses thereof.” It will be noted that the council is not here required in terms to enact such an ordinance, but is merely authorized to do so. The council is the governing body of the municipality. It is given the exclusive control of streets and highways. (Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. statute, and that the mode of procedure, adopted by the council with reference to First street fully meets its requirements.

756; Rev. Codes, secs. 3259, 3361-3365.) The power thus conferred imposes a commensurate duty, viz., to exercise ordinary diligence to keep its streets and highways in a reasonably safe condition. A default in the performance of this duty renders the municipality liable in damages for any injury to a citizen or his property caused by it. (Snook v. City of Anaconda, supra; Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 425; Sullivan v. City of Selena, 10 Mont. 134, 25 Pac. 94.) After conferring the extensive and exclusive power with reference to the [1] streets and highways, it is not to be presumed that, by enacting section 3369, supra, the legislature intended to impose as a condition that any exercise of it must be in accordance with any carefully prepared system previously adopted. On the contrary, it seems apparent that the intention was to leave it optional with the council whether it shall adopt any definite system of uniform application, or pursue any' plan which it may deem best suited to effect the improvement contemplated at a given time. In other words, it is left free to provide that all work shall be let by contract or to elect to do it itself through a committee or board of public works, or a designated officer, or to pursue that plan which best meets the exigencies of a particular case. The language of the section is permissive, not mandatory, except as to the provisions for notice and a hearing; and, since no reason is suggested or apparent why it should be held mandatory, we do not think we are required to declare it to be so. It is to be observed, too, that the purpose of ordinance 362 is not to provide a system for doing any work, but to declare a liability on the part of the city whenever it directs the paving of a street or some part of it upon which abuts property held by public ownership, and is therefore not subject to taxation or special assessment. If this purpose is legitimate, the ordinance cannot be held to be void, because it does not provide a system to be pursued by the city authorities in improving the streets; nor, for the same reason, is the resolution void. So far as appears from the allegations of the complaint, it may be that there is an ordinance providing the system contemplated by the

Nor do we think the ordinance void because it provides that the expense of paving in front of the lots owned by the federal government shall be paid out of the street fund instead of being assessed against this property. It is true that the statute (section 3386) declares that the entire expense of paving, with the exceptions named therein, shall be assessed against the property upon the street in proportion to the linear feet abutting or bordering thereon. In terms this, includes all the abutting property. The legislature, however, has no power to impose a tax [2] of any character upon any property or instrumentality of the federal government. (McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Osborn v. Bank of the United States, 9 Wheat. 739, 6 L. Ed. 204; Mont. Const., Ord. 1, subd. 2, Id., Art. XII, sec. 2; Rev. Codes, see. 2499.) This immunity includes special assessments. (Fagan v. City of Chicago, 84 Ill. 227; Whittaker v. Deadwood, 23 S. D. 538, 139 Am. St. Rep. 1076, 122 N. W. 590.) In enacting this section the legislature must have had in mind the extent of its power, and, though it expressed its will in general terms, its evident .purpose was that the power conferred was to extend to such property only as is not exempt from the imposition. It would be absurd to hold that it intended a municipality to do an act which it had not itself- the power to do, or to make a requirement which could not be enforced by action or any other means. In view of the general power conferred upon a municipality to pave and improve its streets, it would also be absurd to hold that, because there chances to be abutting upon one of its streets property exempt from special assessment, it cannot proceed with the improvement of that street-at all, or else must leave the portion upon which the property abuts entirely unimproved, thus exposing itself to the peril of actions for damages for injuries caused by its neglect to keep its streets in a reasonably safe condition.

[3] Sections 3259, 3365, and 3367 confer upon the council ample power to have any improvements made, and, when it is beyond its power, under sections 3367, 3370,- and 3386, to provide for defraying the expense of any portion of such improvement by special assessment upon abutting property, we think that it may devote the street fund created under the requirements of section 3361, or any money in the city treasury not set apart for some other purpose, to the carrying out of such portion of the improvement. There is nothing in the opinion in City of Kalispell v. School District, 45 Mont. 221, 122 Pac. 742, inconsistent with the view that the lots occupied by the federal building are not subject to the special assessment. We held in that case that, though the property of a school district is exempt from-taxation under the provisions of section 2, Article XII, of the Constitution, and under section 2499 of the Revised Codes, it is nevertheless subject to special assessment for street improvements upon the theory that these special assessments are not taxes within the ordinary meaning of the term “tax,” as used in these provisions, and that the constitutional and statutory exemptions, supra, have no application. Though property belonging to the federal government is exempted in the same terms as is the other property enumerated, and would otherwise fall within the letter of the decision, yet for the reason that the federal government is supreme within the purview of the powers granted to it by the Constitution, and cannot be subject to any state, its property is exempt from special assessments, as well as ordinary taxes, and this even in the absence of any such provisions as those found in our Constitution or state laws. (McCulloch v. State of Maryland, supra.)

This brings us to the question presented by the second contention made by council for the plaintiff, viz., that the proceedings of the council are void because, by its resolution and its notice calling for bids, it has specifically required the use of bitulithie [4] pavement, thus eliminating competition in bidding, in violation of section 3278 of the Revised Codes. This section declares: “All contracts for work, or for supplies, or material, for which must be paid a sum exceeding two hundred and fifty (250) dollars, must be let to the lowest, responsible bidder, under such regulations as the council may prescribe. * * * ”

It may be remarked, in the first place, that the address presented to the council by a majority of the owners of abutting lots cannot be considered as aiding the proposed action of the council. There is no provision anywhere, in the legislation touching municipalities, permitting property owners to control the action of the council by petition or address when engaged in the letting of contracts for any purpose. The power to let is lodged exclusively in the council, under the limitations prescribed by the statute. If the statute granting the power also prescribes the procedure which must be pursued, this procedure is the exclusive guide. The question of good or bad faith or of sound discretion on the part of the council does not affect the result. The question always is, What does the statute say shall be done, and has the council done it? The provision requiring competitive bidding is designed to prevent favoritism and to secure to the public the best possible return for the expenditure of the funds which the property owners are required to furnish, through the payment of taxes and assessments. But the benefits to be anticipated from the letting of contracts by this mode will vary according to circumstances. The article or material desired may be of such a character that the competitors will or may be numerous. In other eases the persons who can compete will be few because the article or material is of such a character, or the source of supply so limited, that only a few persons can furnish it. It may happen that there can be but one or two bidders. The principle of competition would nevertheless still be retained, and a contract let under these circumstances would not necessarily be objectionable on the ground of illegality. The security of the public against favoritism and extravagance would still rest in the power of the council to reject all bids. It may happen in a given case, as here, that because the necessary article is patented, or because the source of supply is in the control of a single person, there can be no competition as to it. One who has a patented invention has the exclusive right to make and sell it. He can fix the price at which it must be sold and can control the supply. He therefore has a monopoly — ■ one granted to him by the law, it is true, but still a monopoly. None the less has he also a monopoly who owns the only gravel or sand pit or stone quarry from which the city may obtain material for construction purposes. It is thus apparent that in many, perhaps most, cases the margin for competition is practically unlimited, while in others it is comparatively narrow. In ease of a patented invention, or where the source of supply is controlled by a single person, the margin disappears altogether as to that particular article. According to the theory of counsel for plaintiff, the patented invention cannot be used at all, or, in any event, cannot be noticed to contractors in the specifications as an item to be incorporated in their bids. Nor can any call be made for bids for construction work which requires the use of sand, or gravel, or stone, when the supply and price are controlled by a single individual. This theory includes the necessary postulate that, however preferable and cheap the patented article may be, the council cannot avail itself of its use, and, in the absence of more than a single supply of necessary construction material, it must abstain entirely from contemplated improvements. Did the legislature contemplate this result? There is a conflict of authority on the subject.

In the pioneer case of Hobart v. City of Detroit, 17 Mich. 246, 97 Am. Dec. 185, the question arose as to the power of the common council of the city of Detroit to let a contract for the laying of the Nicholson pavement. The patent was controlled exclusively by a single firm who alone bid for the contract. It was argued by complainant that, since there could be but a single bidder, public competition was excluded, and hence that the contract was void. The court held, however, that the statute did not prevent the city from contracting for the Nicholson pavement, although in fact the only bidder was the patentee. In the course of the opinion, Mr. Chief Justice Cooley said: “The statute has fixed a rule from which great benefit will be derived in many cases, and some benefit in most cases; and it has declared, in effect, that contracts shall be valid which comply with that rule. The rule is made general for the benefits that will generally flow from it; and the purpose is to attain those benefits wherever practicable, be they more or less. We cannot declare a contract void on the sole ground that no benefits followed the application of the rule in that particular case, though the common council might have refused to enter into it for that reason, if they had seen fit. And if we cannot declare a contract void because of this result, neither, I think, can we do so because beforehand the result might be supposed inevitable.” The rule announced in this case was reaffirmed and followed in Holmes v. Council, 120 Mich. 226, 77 Am. St. Rep. 587, 45 L. R. A. 121, 79 N. W. 200. We are inclined to agree with the reasoning of Judge Cooley. In principle, it can make no difference whether the council makes its selection of the desired article or material before the specifications are made up or after the bids are opened. But we are not required to go so far as the court did in that case. We think the facts in this case make it apparent that, except as to the patented processes and compounds of the Warren Bros. Company, the cost of which is only a part of the gross cost of the improvement, the prineipie of competition has been retained. By the agreement filed by the company with the council, the cost of the patent is made the same to every bidder. Yet there is a wide margin left within which fall the labor, other materials, tools, machinery, etc., necessary to complete the improvement, with reference to which there can be the freest competition.

The case of Saunders v. City of Iowa City, 134 Iowa, 132, 9 L. R. A., n. s., 392, 111 N. W. 529, is directly in point. The Warren Bros. Company, as here, had filed an agreement with the city binding itself to furnish its patent to all bidders. The court held that, though the council in its resolution ordering the improvement and in its advertisement for bids.required the use of bitulithic pavement, it did not violate the statute relating to competitive bidding. In the course of the opinion the court said: “All that the law means, as we view it, is that, in all cases where competition may exist, such competition shall be allowed by receiving bids, and, in tbe absence of express prohibition, there is nothing to warrant the exclusion of patented articles. The provision as to bidding regulates the exercise of a power and was manifestly not intended to limit it. And neither the public nor the parties benefited by the improvement should be deprived of the best and most approved pavements because full effect cannot be given to an Act passed to regulate the exercise of a power expressly granted by other statutes. In other words, the provision as to competitive bidding has reference only to those cases where there may be competitive bidding, and not to cases where some of the articles which enter into the work may be in the hands of particular individuals. Courts have never willingly blocked the wheels of progress. They should, and have at all times sought to, encourage and stimulate endeavor and foster individual initiative; and, while a great conservative force in government, they do not consciously stand in the way of either mental or material advancement. The statute providing for letting a work of public improvement to the lowest responsible bidder was enacted to secure competition, to prevent fraud, and defeat graft. It was enacted to remove, as far as possible, all favoritism and to secure the performance of public work at the lowest possible price; but it was not intended thereby to impose upon individuals the use of an article simply because it was old, nor to thrust upon the people something that was inferior and antiquated, simply because there might be competition as to that, but not in a newer and superior article.” The rule as here stated has been recognized as sound by the courts of New York, Kansas, California, Indiana, Ohio, Maryland,’ New Jersey, Missouri, and perhaps other states. (In the Matter of Dugro, 50 N. Y. 513; State ex rel. Dawes v. Board of County Commrs., 57 Kan. 267, 45 Pac. 616; Yarnold v. City of Lawrence, 15 Kan. 126; Perine C. & P. Co. v. Quackenbush, 104 Cal. 684, 38 Pac. 533; Tousey v. City of Indianapolis, 175 Ind. 295, 94 N. E. 225; Hastings v. Columbus, 42 Ohio St. 585; Baltimore City v. Flack, 104 Md. 107, 64 Atl. 702; Bye v. Atlantic City, 73 N. J. L. 402, 64 Atl. 1056; Newark v. Bonnell, 57 N. J. L. 424, 51 Am. St. Rep. 609, 31 Atl. 408; Verdin v. St. Louis, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52; Swift v. St. Louis, 180 Mo. 80, 79 S. W. 172.)

The leading ease laying down the contrary rule is Lean v. Charlton, 23 Wis. 590, 99 Am. Dee. 205. But the Wisconsin court in the later case of Kilvington v. Superior, 83 Wis. 222, 18 L. R. A. 45, 53 N. W. 487, found it necessary to recede somewhat from the rule as broadly stated in Lean v. Charlton. In that case it was held that a contract let for the construction of a cremating furnace, the mode for building which was patented, was not invalid where the letting of the contract for the labor of construction and the materials was to the lowest responsible bidder; the owner of the patent having agreed to allow the use of the patented mode at a specified price by anyone bidding for the contract. In the course of the opinion by Mr. Justice Pinney, we find this comment upon Lean v. Charlton: “In view of the legislation which followed Lean v. Charlton (an Act validating the assessment), and the fact that it was decided by a divided court, and the general trend of subsequent decision, and the further fact that patented methods and processes now enter so largely into various classes and kinds of public work, we are not disposed to extend the rule of that case beyond the point there decided.” A collection of cases sustaining the divergent rules announced in Hobart v. City of Letroit and Lean v. Charlton may be found in the notes to Kilvington v. Superior, as reported in 18 L. R. A. 45, and Allen v. Milwaukee, 5 L. R. A., n. s., 680. Some of the courts recognize a distinction between cases in which the city authorities purpose to pay for the contemplated improvement by general taxation, and those in which payment is to be made by means of special assessments. We shall not stop to compare them or undertake to find a reason for the distinction, if there is any. Our statute requires [5] that all work necessitating the expenditure of a sum exceeding $250 shall be let by contract to the lowest responsible bidder. This requirement extends to and includes expenditures made from the general revenues of the municipality as well as from funds derived from special assessments.

The order of the district court is correct, and is affirmed.

Affirmed.

Mr. Justice Holloway concurs. Mr. Justice Smith, being absent, did not hear the argument and takes no part in the foregoing decision.