While I concur in the conclusion reached in the majority opinion that the demurrer should have been overruled, I would go further.
In my opinion, the contract was void, since it was awarded without advertising for bids, as required by Art. VI, § 6, of the Yakima city charter. The majority opinion agrees with the appellants' contention that a street lighting contract of the kind involved in this case constitutes a "purchase of property or material" within the meaning of that charter provision. But it is concluded in the opinion that the Pacific Power and Light Company was the only company equipped to give the service, and reference is made to a resolution of the city commissioners reciting that the power company had been for many years engaged in furnishing electric service within the city of Yakima and was the only person or company so engaged or in a position to furnish the city with the street lighting service required by it.
The declaration of the city council is entitled to high respect, but, as a finding of fact, I think the recital in the resolution that the power company was the only corporation in a position to furnish the street lighting service required by the city, for the ten-year period, was negatived by the admitted facts.
The franchise of the power company had expired, and a proposal for its renewal had been submitted to the voters of the city for their approval, and rejected. The company was not, therefore, in a better position than any possible competitor to contract for the service for a ten-year period. The power company was occupying *Page 166 the streets of the city at sufferance. It had no assurance, nor could the city commissioners conclusively assume, that it would be permitted to occupy the streets for any definite period in the future.
There was no dearth of electricity in the state of Washington nor in the Yakima valley, and there might well have been other private or public corporations ready to contract with the city for its street lighting. It would seem that there was no emergency requiring the execution of a long-time contract without advertising, because the power company was dependent, for a continuance of the right to do business, on the city's forbearance and could not refuse to supply the city with current service on reasonable terms. But if, for any reason, an emergency existed calling for entering into a contract without advertising, I think the spirit of the charter required that the contract, by its terms, should be terminable whenever the city should choose to terminate the company's right to occupy the streets. A contract so limited might be sustained within the rule deducible from the authorities cited in the majority opinion.
In discussing the public policy underlying statute and charter provisions requiring the advertising of calls for bids, this court, in Reiter v. Chapman, 177 Wn. 392, 31 P.2d 1005, 92 A.L.R. 828, said:
"The principle of giving notice of proposed public contracts is, broadly speaking, in the public interest, and when the legislative authority has indicated, as has that of this state, that it has adopted the general policy of requiring that notice be given of proposed public contracts, the courts will not, by strict construction, narrow the scope of a statute and limit its application in cases where such a construction is apparently against the legislative policy.
"Statutes controlling the making of contracts by the officers of municipal corporations are laws for the *Page 167 protection of the public and those who support public agencies by the payment of taxes. Generally speaking, a sound public policy supports the proposition that a reasonable notice shall be given of the letting of public contracts, in order that, by competition in bidding, the public may receive the benefit of the greatest possible value for the least expenditure. Grace v. Fobes,118 N Y Supp. 1062."