For the prosecutors, Nicholas S. Schloeder.
For the defendants, John H. Cooper and Riker & Riker (Thomas E. Fitzsimmons, on the brief).
Trenchard, Lloyd and Case.
The opinion of the court was delivered by Case, J.
This writ of certiorari brings up for review the award of a contract by the town of Kearny, in the county of Hudson, for the repavement of a portion of Davis avenue. The case turns on the construction to be given section 4 of "An act concerning the construction, reconstruction, or resurfacing of any state highway, county road or municipal road, and the award of contracts therefor." Pamph. L. 1923, p. 495, which provides:
"Whenever any patented, propriety pavement or paving material, or ingredients used in paving, is included in the specifications, it shall be the duty of the board or body having charge of the work not alone to specify such type of construction, but to place in the specifications one or more equivalent types of construction upon which no patent exists, or upon which there is no propriety right or condition as an alternate type, and bids shall be asked for on the various types so specified, and the award shall be made to the lowest responsible bidder on the types of construction so placed in competition by the governing board."
The proposals called for bids on Warrenite Bitulithic pavement, admittedly a patented pavement, and, as alternates, on National pavement, also conceded to be a patented pavement, and Asphalt Block pavement, a pavement upon which no patent exists and upon which there is no proprietry right or condition. The low bid was for Warrenite Bitulithic. It was made by the defendant Patrick J. Maher, and the contract was awarded to him. The question is whether Asphalt Block may lawfully be thus used as an alternate type to Warrenite Bitulithic. To be an alternate it must be an "equivalent type of construction." For clearer understanding the following definitions are given: Bitumen is a mineral pitch or asphalt; likewise asphalt is mineral pitch. Bitulithic, as its origin indicates, is a kind of paving, the main body of which consists of broken stone cemented together with bitumen or asphalt.
The patents by which the so-called patented pavements are protected are not upon the ingredients but upon the processes by which the ingredients are mixed and laid. As was said by James H. Howard, a consulting engineer on roads and pavement, and a witness called by the defendants -- speaking specifically of Warrenite Bitulithic: "The ingredients are crushed stone, sand, sometimes a little powdered limestone, these being the mineral ingredient, which are cemented together with asphalt cement. The construction of the pavement, however, is controlled by patents; it is not in the ingredients thereof, but in the method of putting the three portions thereof together on the street." The witness then proceeds to describe this Warrenite Bitulithic process as follows:
"This Warrenite Bitulithic pavement, the bituminous concrete is prepared of relatively coarse crushed stone, ranging from coarse pretty close to even about one-quater of an inch in size, mixed hot and cemented together with asphaltic cement, spread in place, and not rolled. On this is placed a finer grain asphalt concrete mixture, principally sand and bitumen, being spread by hand, and the second mixture is rolled onto and into the lower mixture; the finer surface is treated sometimes with fine sand and sometimes powdered limestone, spread on and rolled into place. This is under the Wallace patents and -- I don't know the patents now, but they are all in my office, if you want them; but I only tell you this; and it seems wise to state that while they are all bituminous pavements, the method of putting them together is the only real difference. When they are all done, it is all an asphalt concrete pavement, including the asphalt block, which is also an asphalt concrete pavement."
The same witness then described the National pavement thus:
"You understand, my answers are entirely upon the specifications in suit, and not as National pavement has been laid otherwise, or elsewhere. I will answer the question by stating that the National pavement specified in this case requires a bituminous concrete or binder layer to be spread upon the prepared foundation hot, rolled and finished to a thickness of one inch; the mixture or composition of the wearing surface also to be placed on this binder also is to be one and a half inches thick when finished. It is composed of natural mineral matter, as found in nature, heated and thoroughly mixed bitumen and cemented together by asphaltic cement. The patents connected with it are the Popkis patents. I briefly state the gist of those patents."
The witness then gives this description of Asphalt Block:
"Trap rock or other hard, suitable stone is crushed and when crushed is co-mingled from relatively coarse pretty close down to and including powdered stone. These are heated and mixed with asphalt cement and the mixture compressed into block form at the factory or works where made. The blocks are then sent to the location where they are to be used, and in these specifications are laid by hand on a mortar bed of one-half inch thickness, the mortar bed being composed of cement and sand. I have not spoken of the base, because the base or foundation of all these pavements is the same. After they are placed squarely and firmly together in a uniform surface, that surface is painted over with a hot asphalt cement, or to the common mind, it is hot tar poured upon and painted over the outer ...