(dissenting) — The basic error in the majority opinion is in the holding that the contract in question is voidable only, and not void. The statute, 3 Rem. & Bal. Code, § 5879-9, requires that such a contract shall be awarded to *457the “lowest responsible bidder;” and saves the right to the board to reject any and all bids. A statute which requires that a contract shall be awarded to the “lowest responsible bidder” is equivalent in meaning to a statute which requires “competitive bidding.” Great Northern R. Co. v. Leaven-worth, 81 Wash. 511, 142 Pac. 1155.
Where a statute requires that contracts for public work shall be let upon competitive bidding, or to the lowest responsible bidder, any secret fraud practiced on the part of the successful bidder or bidders which tends to avoid the competitive requirement of the statute, renders the contract void, not voidable.
In 6 R. C. L. 818, it is said:
“Though there are English and Canadian decisions to the contrary, the rule is settled in the United States that agreements which, in their necessary operation upon the action of contractors bidding for public work, tend to restrain the natural rivalry and competition of the parties, and thus produce a result disadvantageous to the public, are against public policy, and void.”
See, also, 2 Dillon, Municipal Corporations (5th ed.), § 781; Editor’s note to the case of Citizens’ Nat. Bank of Chickasha v. Mitchell, 20 Am. & Eng. Ann. Cas. 886.
The fact that a good road may have been constructed under the contract in question, and that the relator was the only person equipped to properly perform the contract, if such are the facts, have no bearing on the question. Contracts awarded in defiance of the statutory provision requiring competitive bidding are illegal in their nature and tendency, and for that reason no inquiry is necessary as to the particular effect of any one contract, because it would not alter the general nature of the contract, or the force of public policy which condemns them.
In Conway v. Garden City Paving & Post Co., 190 Ill. 89, 60 N. E. 82, it is said, speaking with reference to such contracts :
*458“The test of illegality is not the result in a particular case, but the tendency of the contract if recognized as valid in the law.”
In McMullen v. Hoffman, 174 U. S. 639, with reference to the same question, it was said :
“Contracts of the nature of this one are illegal in their nature and tendency, and for that reason no inquiry is necessary as to the particular effect of any one contract, because it would not alter the general nature of contracts of this description or the force of public policy which condemns them.”
The contract, being void, cannot be made the basis of an action. The contractor’s only remedy is for the reasonable value of the work done and the materials furnished. In other words, the remedy is not upon the contract, but upon a quantum meruit. Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pac. 457.
In this case, in the proposal for bids, one kind of paving specified was “Bitulithic surface material,” which was a patented article. The specifications required the patentee to furnish this material to any successful bidder at a definite 'reasonable price per square yard. The patentee was required to file with the board what is known as a license agreement or statement that it would furnish such patented material to any successful bidder at the price named. This license agreement or statement was filed, and provided that the Bitulithic surface paving mixture would be furnished to any contractor at ninety cents per square yard. The patentee, at the time, had a secret agreement with the relator whereby it could acquire the Bitulithic paving mixture at a cost to it of approximately thirty-eight cents less per square yard than other contractors would be required to pay under the license agreement filed with the board; It requires no argument to show that, under the secret agreement with the patentee, the relator had a material and substantial advantage over any other contractor that might desire to bid upon that particular kind *459of paving. The secret agreement which the relator had with the patentee was destructive of the competitive feature required by the statute, and rendered the contract awarded in pursuance thereof absolutely void.
The fact that a number of other kinds of pavement were called for in the proposal, and bid upon, does not alter the situation. The bitulithic pavement being a patented article, may be used under a statute which requires competitive bidding, provided it can be acquired at a reasonable price, and is bid upon in such a way that it will be subject to the greatest amount of ^competition which is possible. This is the doctrine of the case of Great Northern R. Co. v. Leavenworth, 81 Wash. 511, 142 Pac. 1155. In that case it was held that the bid upon Bitulithic paving, where the license agreement had been filed agreeing to furnish the article to any successful bidder at a reasonable price named, satisfied the statute as to the requirement for competitive bidding. But so far as the record shows, at least, the successful bidder in that case did not have a secret agreement which provided for a price different or less than that specified in the license agreement filed, and to which all bidders had access.
In my opinion, the method adopted to secure the contract in question was unfair to other bidders, injurious to the public, indefensible in morals, and renders the contract illegal and void in law. • For the reasons stated, I am unable to concur in the majority opinion, and therefore dissent.
Morris, C. J., concurs with Main, J.