ahead of the car. The special findings showing in detail just what occurred overturn the finding of negligence and must control. Atchison, T. & S. F. R. Co. v. Plunkett, 25 Kan. 188; Central Branch U. P. R. Co. v. Henigh, 23 Kan. 347, 359, 33 Am. Rep. 167; A., T. & S. F. R. R. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824; Penrose v. Cooper, 88 Kan. 210, 213, 128 Pac. 362; Bateman v. Sarbach, 89 Kan. 488, 495, 132 Pac. 169.

We find no error in the instructions. There was no evidence tending to show notice or knowledge on the part of defendant that there were defects in the brakes or appliances of the car. This is a fact case with the findings wholly against the plaintiff's contentions, and supported by evidence about which there was very little dispute.

The judgment is affirmed. All the Justices concurring..

(98 Kan. 292)

TOPEKA BRIDGE & IRON CO. v. BOARD
OF COM'RS OF LABETTE COUN-

TY. (No. 20208.)*

4. BRIDGES 20(2)—CONSTRUCTION CONTRACT -PLANS AND SPECIFICATIONS SUFFICIENCY. to be used in the construction of a reinforced If the relative amounts of concrete and steel concrete bridge could not, from the plans and specifications on file, be definitely known and understood by all the bidders, but were to deand upon the additional plans subsequently append upon the design of the successful bidder proved by the county board, all bidders would not be placed upon an equal basis, and, besides, it would be impossible for the board to have before it when the bids were offered a correct estimate of the cost of the bridge.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 42-44; Dec. Dig. 20(2).] 5. BRIDGES 20(2) - CONSTRUCTION - LETTING OF CONTRACT-PLANS AND SPECIFICATIONS COMPLIANCE WITH STATUTE. for the inspection of bidders are so general as to Wherever the plans and specifications on file admit of any substantial variation of detail, then active, intelligent competition among bidders is prevented, favoritism and corruption are made possible, and the purpose of the statute has not been complied with.

[Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 42-44; Dec. Dig. ~20(2).]

6. BRIDGES 5-CONSTRUCTION-SUBMISSION
TO ELECTORS-REPEAL OF STATUTE.
The enactment of chapter 68, Laws of 1911,
repealed by implication section 14, chapter 77,

(Supreme Court of Kansas. June 10, 1916.) of the Laws of 1879, which required that, in all

(Syllabus by the Court.)

1. BRIDGES 20(2)—LETTING OF CONTRACTS -PURPOSE OF STATUTE.

The purpose of the statutory provision that

all contracts for the erection of certain public buildings or the construction of bridges shall be awarded on a public letting to the lowest responsible bidder (section 2081, Gen. St. 1909), and the provisions of chapter 14, Gen. St. 1909 (sections 643-678), requiring that, when a county deems it necessary to build a bridge, it shall determine upon a plan, the material to be used, and estimate the cost thereof, and that "the plans and specifications for the bridge shall be left in the office of the county clerk for inspection" (section 664) of prospective bidders, is to secure economy and to protect the public from collusive contracts, which would result in favoritism and fraud.

cases where the cost of the bridge exceeds $2,000, the question must be submitted at an election before appropriation is made.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. § 5; Dec. Dig. 5.]

Porter and West, JJ., dissenting.

Original proceedings in mandamus by the Topeka Bridge & Iron Company against the Board of County Commissioners of Labette County. Writ denied.

D. R. Hite and Mulvane & Gault, all of Topeka, for plaintiff. S. M. Brewster, Atty. Gen., S. N. Hawkes, Asst. Atty. Gen., and E. W. Columbia, of Oswego, for defendant.

PORTER, J. In this action the plaintiff seeks by mandamus to compel the defendant

[Ed. Note.-For other cases, see Bridges, Cent. to carry out a contract for the erection of a Dig. §§ 42, 44; Dec. Dig. 20(2).]

2. BRIDGES 20(2)-CONSTRUCTION PLANS
AND SPECIFICATIONS-REQUISITES.
Although, when these statutes were first
adopted, the construction of reinforced concrete
bridges was an art unknown in this country,
nevertheless the statute meant then just what
it means now; that the plans and specifica-
tions on file for the inspection of bidders must,
so far as the nature and character of the propos-
ed work will admit, be sufficiently definite and
explicit to enable bidders to prepare their bids
intelligently on a common basis.

[Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 42-44; Dec. Dig. 20(2).]

3. BRIDGES 20(2)-CONSTRUCTION CONTRACT -CHANGE OF SPECIFICATIONS.

After a contract for the erection of a bridge has been awarded, it cannot lawfully be changed by additional specifications in a detailed working plan furnished by the contractor and approved by the county, and by which substantial changes are made in the requirements submitted to the other bidders.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 42-44; Dec. Dig. ~20(2).]

bridge. In a former opinion (Bridge & Iron Co. v. Labette County, 97 Kan. 142, 154 Pac. 230) it was held that, inasmuch as the remedy in an action at law is not fairly adequate, mandamus is a proper remedy. Because of the fact that defendant desired to aid the court in its solution of the question of law involved, by presenting testimony relating to reinforced concrete bridge construction, leave was granted to both parties to submit evidence. This has been done by filing of affidavits, and the case is now here for final

disposition.

On April 8, 1915, the board of county commissioners of Labette county adopted a resolution declaring it was necessary to build a certain bridge at a cost not to exceed $4,500. On the same day a plan and specifications of the proposed bridge were filed with the county clerk, who thereupon duly advertised for bids to be submitted on May 8, ¡ 1915. The plaintiff was the lowest bidder,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

form practice of boards of county commissioners whenever they deemed it necessary to build a county bridge, to determine upon a plan or general design, as distinguished from a detail or working drawing, and to adopt such specifications as in the judgment of the board would result in the construction of the kind of bridge desired, and to file with the county clerk for inspection this general plan and specifications. The practice during all this time has been for bidders to submit detail drawings showing the means to be employed to conform with the general plan and specifications and these detail plans "The contractor shall submit detailed plans were then examined to see if they conformed for, and shall receive a written approval of with the general plan and specifications. such detailed plans from, the board before he Recently, however, the Attorney General of shall commence any work or buy any material | for the work covered by these specifications. the state has advised the defendant and othSuch detailed plans, when properly approved, er counties that this method is illegal, and shall become a part of the contract, and shall be binding on both parties."

of each span; (h) the curve of each arch ring; (i) the elevation of the roadway, and its pitch or camber, with a datum line by which to construct the roadway; (j) the angle at which the wings are to be built, showing the "skew" at each end and proper elevations for each; (k) the position and elevation of an old stone ford to be removed by the contractor; and (1) a note is added stating that "thickness of the arch rings, piers, and abutments is to depend upon details of reinforcing."

officials have control, to cause the said bridges | abutments and piers; (g) the length in the clear and culverts to be constructed of concrete, reinforced concrete, stone, corrugated iron, which shall be ninety-nine per cent pure, or steel, or both in preference to steel, in each and every case where such bridge or culvert can be constructed at a cost not to exceed 130 per cent. of the cost of building said bridge or culvert made of steel. Said officials shall not consider bids on any bridge or culvert made of concrete, reinforced concrete, or stone, which is not designed to safely carry a uniform live load of at least two hundred pounds per square foot of floor surface, nor on a bridge or culvert of seventy-five foot span or less made of any other material except wood, which is not designed to safely cary a uniform live load of not less than one hundred pounds per square foot of floor surface; nor shall said officials consider bids upon a plan which is not designed with a smaller factor of safety than four: Provided that every concrete, reinforced concrete, stone, or steel bridge with a concrete floor, shall be guaranteed by the contractor for a period of four years after the completion of said bridge against defects of design, workmanship or materials, said guarantee to be covered by an approved surety bond issued by a company authorized to do business in the state of Kansas.' Laws 1913, c. 70, § 1. The plan and specifications filed with the county clerk for the inspection of bidders in this case comprise 57 details, the second one of which reads:

The principal omissions which the defendant considers material are, first, failing to give the thickness of the arch rings; second, failing to give the thickness of the pier; third, failing to give the dimensions of the abutments; fourth, failing to give the thickness of the wings. The plaintiff claims these objections are answered by the fact that the plan does give the length of the lower arcs and the width of the lower surfaces of these rings, and that, as to the dimensions of the abutments, their height and width are given; and that, as to the thickness of the wings, the specifications state their height, location, length, angles, and "skews." The plaintiff further calls attention to the fact that a note on the blueprint states:

"Thickness of arch rings, piers, and abutments "The accompanying plans, together with the to depend on details of reinforcing" accepted bids and these specifications, form the basis of the contract and are each to be consid--and contends that the meaning of this note ered a part thereof. The contract contemplates is that the bulk or thickness of the arch a structure complete in all its details. For such parts that are not shown with sufficient detail, the contractor shall submit detail drawings for such parts to the board for approval before its incorporation in the work. After approval such detail drawings shall become a part of the contract. Dimensions given must control in preference to scale measurements. When intermediate dimensions are desired, the scales of similar adjacent parts shall control."

rings, piers, and abutments must be appropriate to the method used by the contractor in reinforcement. It is also contended by the plaintiff that all bidders were invited to compete as to methods of reinforcing, and notified that any method of reinforcing that would correspond to the plans and specifications and produce the required structure The specifications include, first, what are would be considered by the county, and as known as "standard specifications," and de- all bidders were chargeable with notice of fine with particularity the materials of which the requirements of the act of 1913, supra, the bridge shall be constructed, the character as to the strength and factors of safety, each of the stone and cement, the character of of them understood that, whatever method of the steel used in the reinforcing members, reinforcing he proposed, the arch rings, piers, the tension and stress of the same, the man- and abutments and the completed bridge ner in which they shall be embedded and must be adequate to meet the statutory refixed in the concrete, and provide that all quirements. It is urged that, if the county materials shall be subject to inspection and had specified the thickness of the arch rings, approval by the board who shall control as piers, and abutments, it would amount to to interpretation. The plan accompanying the same thing as though the commissionthe specifications consists of a blueprint ers had adopted a single one of the several which shows an elevation of one-half of the accepted methods of reinforcing, and had bridge, gives the center line, the different excluded all the rest, and that, while the arcs of the arched rings, with radii centers county might have secured an equally good and degrees, together with details of appear- bridge, competition would necessarily have ance including the ornamental features of been restricted. Attention is called to a list the bridge and the coping and railing. It of 30 patents issued to inventors of this shows a cross-section of the roadway, giv-type of bridge, the majority of which have ing a width of 14 feet in the clear, and the depth and pitch of the earth fill. The blueprint also gives the following details:

"(a) The crossing and location of the bridge; (b) contour of the ground; (c) character of the soil, showing depth of rock or shale below the surface; (d) the depth in the rock or shale to which piers and abutments must be sunk; (e) the low-water line and the height of the arch

been granted within the past 10 or 15 years, and it is stated in the brief that there have been many additional patents issued between April, 1911, and March 10, 1914, covering reinforced concrete arches.

One of the managing officers of the plaintiff testifies that the use of detail plans has resulted in limiting competition in bids for

of numerous patents covering various meth-tity thereof with steel or iron, and thus maods, but because a bridge of this character terially reduce the cost, without sacrificing is a composite structure, composed of steel strength, durability, or appearance; that and concrete combined, and any variation in one contractor uses larger quantities of condetail of the amount or position of one of crete and steel, while another, by using a these materials changes the stresses and like- different method of arranging the reinforcing wise the amount of the other material; that members in the concrete, produces a bridge the majority of bridges built in this state from a smaller amount of materials, which is since 1898 have been constructed of steel, equally strong and durable, and fully up to that practically no concrete bridges were the statutory and proper engineering standbuilt before 1906, and that at this time there ards. It is said that one bidder may acare not more than one-third of the bridges, complish the result by making his arch rings exclusive of culverts, which are made of thicker than another bidder would make concrete; that the procedure for letting con- them, by using a different detail in reinforcetracts for county bridges developed during ment; and it is urged that there can be no the steel bridge era, in which the practice valid objection against the board exercising has been to file a plan, specifications, and their sound discretion, when, in asking for estimate of the cost, and that the plan so bids on a bridge of this character, they note prepared and usually adopted determined the on the plans filed for inspection that quantifollowing points about the bridge: (1) Length ties of materials are to depend upon details of bridge. (2) Width of the roadway. (3) of reinforcing, and thus invite competition Height of bridge. (4) waterway. (5) Depth from bidders using different methods of reof foundations. (6) General appearance. (7) inforcing, irrespective of patents protecting Angle the bridge makes with the stream. the various methods; and it is urged that, (8) General dimensions and locations of wing if any person is entitled to construct such walls. It is said the specifications usually bridge by using more than one patented determine: (1) The material of which the method of reinforcement, he is at liberty to bridge shall be built. (2) The load the bridge offer bids in the alternative covering various shall safely carry. (3) The quantity of the methods. different materials to be used. (4) Standard The affidavit of the state engineer is to the specifications, which include rules and re- effect that, where detailed working plans are quirements common to specifications for the not on file before the contract is made, it is successful and satisfactory completion of the impossible for the engineer to make an esbridge and the protection of the county. He timate of the cost of construction, and, furfurther testifies that, after the contract is ther, that the expense to each bidder of prelet, the practice has been for the contractor paring a set of detail working plans for a to file with the board his detailed working | bridge similar to the one in this case is about plans, which the board approved, with such $150. He further testifies, in substance, that modifictions as it desired to have made, and that he has never known of a detailed working plan for a bridge to be placed on file for the inspection of bidders either for highway or railroad work. His testimony is that, with the plan and specifications determined upon by the board in this case, "any one skilled in reinforced arch construction will be able to fully determine just how the details can be arranged to build the bridge, and any one skilled in the art and employed by the board can determine whether the details the contractor submits to him will result in the bridge the board have previously determined upon. There is nothing to hinder any one skilled in the art from bidding on the general plans and specifications submitted in this case. No two reinforced concrete arch designers will make the details the same, yet both will produce the bridge the board determined upon in this case."

The plaintiff directs our attention to the fact that the art of building reinforced concrete bridges has developed a variety of methods, a great majority of which are protected by patents; that the quantity of steel used in such construction is relatively small, and that it is the constant object of inventors to reduce the quantity of concrete by scientifically reinforcing a smaller quan

it is impossible to estimate, or even to make an approximate guess, as to the amount of concrete and steel that would be required for the construction of this bridge from the general plans and specifications, and that it would be impossible for a contractor to construct a bridge with no more information than is furnished in the general plans and specifications, and that an engineer could not estimate the cost of the bridge; that detailed working drawings would have to be prepared, showing the thickness of the concrete in each section of the arch ring, etc., and the sizes, spacing, exact location, and length of all reinforcing members before an estimate could be made; also that the detailed plans show a structure which is not designed according to the general plan or the advertisement; that the plans on file for the inspection of bidders indicate a vastly greater volume of concrete than is shown by the detailed plans. The necessary effect of this, if true, is to let every one but the favored bidder make his estimate upon the larger amount of concrete, and consequently to bid higher than he would if he were bidding on the detailed plans.

[1-3] The purpose of the statute requiring that contracts of this kind be let to the lowest bidder is to secure economy and to pro

tect the public from collusive contracts, which each of several different kinds of wood and would result in favoritism and fraud. The stone pavement, and invited bids for the intent of the requirement that a plan and work to be done with either wood or stone specifications shall be on file for the inspec- pavements according to the specifications on tion of bidders is that all bidders shall be file. Numerous competitive bids were replaced on an equality, and that each shall ceived for putting down the various kinds of know exactly what is required. We think it pavement, some covered by patents and others is clear that although, when these statutes open. After the bids were in, the council were first adopted, the construction of rein- determined what pavement it would adopt forced concrete bridges was an art unknown and let the contract to the lowest responsible in this country, nevertheless the statute meant bidder for that kind of pavement. We have then just what it means now; that the plans no doubt that in this case the county might and specifications on file for the inspection of have adopted the course of inviting bids bidders must, so far as the nature and char- for a steel bridge, a stone bridge, and one of acter of the proposed work will admit, be concrete, and if it had filed for the inspecsufficiently definite and explicit as to enable tion of bidders plans and specifications for bidders to prepare their bids intelligently on each of the three kinds, it might have detera common basis. It may be said as a gen- mined after the bids were in which kind of eral rule that plans and specifications are bridge it would adopt and have let the consufficient if contractors and others skilled in tract to the lowest responsible bidder on that such matters are able to determine what is particular kind of a bridge. The following required. Yaryan v. Toledo, 28 Ohio Cir. Ct. language of Judge Cooley in the Michigan 259, affirmed without opinion in 76 Ohio St. case would apply to such a condition: 584, 81 N. E. 1199. A discussion of the question of the sufficiency of specifications for guidance of bidders for public contracts will be found in a note in 30 L. R. A. (N. S.) 214. The authorities cited in the briefs of the parties furnish very little aid in determining whether or not the plans and specifications in the present case complied with the provisions of the statute. The case most relied upon by the plaintiff is Attorney General v. Detroit, 26 Mich. 264, in which the opinion was written by the late Judge Cooley. Some of the language in the opinion in a general way seems to sustain the plaintiff's contention. For instance, it is said in the opinion:

"If they invite proposals for a particular thing or process, they necessarily in so doing exclude everything else which might have been substituted for the thing called for; and there is no clearer field for corruption and favoritism than in shaping proposals, if in fact the city is in corrupt hands." Page 270.

Again in the opinion it is said:

"If a patented article were desired, which was owned by a single person, who refused to sell the right to territory, or to fix a royalty, or if stone or any other material were required, and a single person owned all within a practicable distance of the place where it was to be used, nothing could be more obvious than that proposals which confined the bids to the particular article or material would invite no valuable competition, and that the protection of the public must lie in the power of the council to reject unreasonable offers. In such a case nothing is easier than for the council to obey strictly the letter of the law, and yet dishonestly and corruptly award a contract to one who is lowest bidder for no other reason than because no one can bid against him, and who, having a practical monopoly, is allowed to fix his own terms." Page 270.

"When bids are thus called for, all bidders for a particular kind of pavement are bidders against all others, in a certain sense; but they particular sense. are also bidders against each other in a more It would be the duty of the council, when all bids were in, to examine all, and to select the kind of pavement for which the bids, all things considered, were relatively the lowest. They might thus, perhaps, reject the kind they would have preferred in advance, but for which they find all bids exorbitant, and determine upon another, because, in their opinion, the offers made for it are more satisfactory." 26 Mich. 273.

In many of the cases cited by the defendant no plans and specifications whatever were filed, and of course it was held that the statute was violated. Thus, in People v. Commissioners of Buffalo County, 4 Neb. 150, although the bridge was to cost $50,000, there were no plans and specifications prepared or filed in advance, and the only competitive bidding was on the plans and specifications of the bidders. In Mazet v. Pittsburg, 137 Pa. 548, 20 Atl. 693, certain general specifications were adopted, which were applicable to all of certain streets to be paved. There were no specifications as to asphalt pavement, and bidders for that kind of pavement were directed to prepare their own specifications, which was accordingly done. The contract, however, was awarded to the defendant for what is called a "vulcanite" asphalt pavement, which the court in the opinion said was "a kind of pavement neither called for in the ordinance, nor even hinted at in the advertisement inviting bids." The court held that the purpose of the statute and ordinances was to secure to the city the benefit and advantages of just competition between bidders and at the same time to prevent fa

The foregoing language was applied, however, to a case wholly dissimilar to the present one. There the common council de-voritism and fraud in every form, and that, termined to pave a certain street and, "instead of determining in advance what kind of pavement should be put down, and confining their invitation for proposals to that

where there were no plans and specifications upon which to bid, there could be no competitive bidding. This case is relied upon by the plaintiff, but it can hardly be said to apply