dissenting:
I cannot give my assent to the proposition that the city did not have the power to make the contract in question, and that is one ground upon which the court below and here bases the decision. I fully agree that if there.was collusion and fraud either in making the contract, or in the performance of work under it, the relief prayed for should be granted. But it is a very different *274thing to say that the city could not make, under any circumstances, a valid contract such as was made in the present case, even if acting in good faith and for the general welfare of the public. To so hold is to deny the city the right to exercise a power it possesses, even for a good and wholesome purpose. For the purposes of this case it is not necessary to take such an extreme position, because the rights of the parties could have been determined upon the facts as found by the learned court below, without taking from the city a power which in many instances can be beneficially exercised by municipalities. In the present case there was a previous appropriation, unexhausted; a previous advertisement for bids covering repairs for the whole year; and a contract which required in express terms the contractors to do the additional work when requested by the city. Everything subsequently done was in accordance with the terms of the original contract which was made after advertisement upon the basis of competitive bidding. It is true that the original contract contained a provision limiting the cost of the work to be done to $50,000, being the amount of the appropriation then available for street repairing purposes. But the contract also provided in terms that as further appropriations became available the city would have the right to call upon the contractor to continue or complete the work “at the prices herein provided and in accordance with the proposal and specifications hereto attached.” In another clause of the contract it was declared to be the understanding of the parties that the expenditures for materials and labor were to be limited to $50,000 “unless amended or supplemented as herein provided.” The subject matter was repairs of streets, not new improvements, or work of a fixed definite character. It is the duty of the city to repair its streets, and this is a continuing obligation. In the very nature of things municipal authorties cannot at the beginning of a year definitely fix the amount and character of the repairs *275which the streets may require during the entire year. The extent and necessity of repairs must be ascertained from time to time by the municipal authorities charged with the duty of inspection. There is no statutory provision, and there should be no policy of law, requiring successive advertising every time certain streets may need repairs during the year. All of these things should be contemplated in the original advertisement; the bids should be made upon this basis; and the contract should cover these conditions. It seems to me this is the proper view to take of the power of a city in dealing with the subject of street repairs. To deny the city the power to make annual contracts upon a single advertisement, where all the bidders are on equal footing, is to seriously interfere with the orderly conduct of municipal affairs. The previous advertisement in the present case was for repairs “during the year 1910, as required by the Highway Department,” and the work was all done under the contract in that year. My position is that the city had the power to make such a contract, and in the absence of collusion or fraud, it was binding, according to its terms, upon all parties concerned. Of course, if there was collusion and fraud, the contract, whether it be called original or supplemental, was vitiated, and the parties could assert no rights under it. The collusion and fraud charged depend upon the facts and not upon the power of the city to make the contract.
For the reasons stated, I cannot agree with that part of the opinion which in effect declares that the original contract did not cover repairs of street for the whole of the year 1910, and that it required readvertisement as additional repairs became necessary.