On Rehearing.
[Decided April 15, 1913.]
Per Curiam.One of the questions raised in this case was that the contract let by the city of Pasco to the defendant Lund was invalid, for the reason that it was not let to the lowest bidder. It was our conclusion that the evidence brought the case within the rule announced in Stern v. Spokane, 60 Wash. 325, 111 Pac. 231. We are asked to restate or modify our opinion, inasmuch as the parties are not certain whether our holding would deprive Lund of the benefit of his contract. The ordinance we held to be invalid provided for the letting of a contract for the piping or distribution system, as well as for the purchase of water from the Pasco Reclamation Company. Under chapter 98, Laws 1911, p. 441, and chapter 111, Laws 1911, p. 510, the power is granted to the city to construct “a piping system for the distribution of water ... by the establishment and creation of assessment districts,” provided that the mayor and council shall by ordinance or resolution adopt plans therefor. The record does not disclose any objection to Lund’s contract, other than that it was let under the same ordinance that we held to be invalid in so far as the Pasco Reclamation contract was concerned. It is not shown that the council, or any of them, had *645any interest in the contract of Lund. We did not intend to hold that the contract with Lund was invalid, for the reasons urged against the Pasco Reclamation contract. It seems to us that our opinion inferentially holds just the contrary. This court has habitually set itself against any interference with the discretion of the legislative bodies of the state, and has gone so far as to hold that, if the illegal can be separated from the legal, we will sustain that which is good and rej ect that which is bad. We feel warranted in applying that rule in this case. We think the case falls within the spirit, if not the letter, of Shaw & Hodgins v. Waldron, 55 Wash. 271, 104 Pac. 272, 28 L. R. A. (N. S.) 735. To hold otherwise would be to hold that the city is bound to let a contract for its distributing system at the same time it acquires water and as a part of the same general scheme; whereas the rule, as we understand it to be, is that the city can pass one or separate ordinances and let separate contracts for all or any part of the work, or may, if not otherwise restrained, do the work or any part of it itself. Our holding therefore, is that the contract of the city of Pasco with the defendant Lund does not come within the rule announced in the case against the Pasco Reclamation Company.
With the petition for rehearing and restatement of our opinion, an affidavit is offered tending to show that one of the council had an interest in Lund’s contract. The affidavit is made by a third party, and is not certified as a part of the record, and will not be considered.