On Petition for Rehearing.
Myers, J.The able counsel for appellees have presented very earnest briefs on petition 'for a rehearing in this cause, and the importance of the question, conpled with the variety of opinions pronounced by the Appellate Court, has led us to a careful review of the cause.
It is urged that because we held that bidders presumptively knew that the work on the surveyor’s office and dee*233oration, of the- court room could- not he let, the bidders, by force of that presumption, bid on an equality.
7. Counsel overlook the fact that-this statute is not for the benefit of contractors, but for the benefit of taxpayers, and while taxpayers might also be charged with the same notice, they are not on an equality.- They cannot be present at all times, and they cannot know what may be sought to be done, but are entitled to have the statute complied with, the very object of the statute. In other words, appellees’ position is that so long as the competition embraces unauthorized as well as authorized subjects, they are on an equality, and if the items are specified, then no harm- can arise, when the proper bids are separated from the improper bids, because the bids would stand in competition on the proper subjects of the bidding. The argument is a specious one, but it has one inherent and controlling vice. The bid of 0 ’Keefe was made conditional on his receiving all the work under the general specifications and the general contract. If the bid had been made as the statute requires, and was otherwise unobjectionable, it would not have lacked mutuality, and would have been binding on both parties, if accepted, but by attaching the condition, the bid Avas taken out of the category of a statutory bid, and made a conditional bid. The bid itself, followed by the contract, made the bid and contract an indivisible one.
What might have been done under the item of decorating the court room, neither we nor the taxpayers could knoAv. But it is urged that so long as there were specifications prepared for the surveyor’s office, and the bids were Avithin the appropriation of $15,000, it must be deemed that the construction of a surveyor’s office was not deemed necessary to be the subject of an appropriation, and its omission an inadvertence. That may be true, and it may have been the subject of the utmost good faith, but all are agreed that an appropriation was necessary; hence that subject could not be embraced in the bidding under the appropriation as made, *234though it embraced a sum sufficient to cover the cost of the surveyor’s room.
*23511. 12. *234But the bidder made it an express condition of his bid, that he should have $763 for constructing a surveyor’s office, and $300 for decorating the court room, without any indication in what the latter should consist, and without any appropriation for the former, and it is therefore immaterial that the bid on those subjects is itemized, for it was accepted as made, and a contract entered into accordingly, so that as to a taxpayer the contract embraced those two void subjects, and having failed to follow the statute, the bid became like any other conditional bid, and the contractor could stand on his bid; whether he could collect if objection were made, is another question. When we said in the original opinion, that “it is impossible to discover what part or how far the bids on the surveyor’s office and for decorating the court room form a part of the entire consideration,” we were squarely within the record, for merely itemizing them does not take them out of the whole consideration. They are a part of the whole, expressly made so by the bid, and while they are separated on paper, they are combined as a whole by the bid and its acceptance, and necessarily enter into the whole consideration, but what part thereof we cannot know. What was to be obtained for the $300 bid for decorating the court room? Yet that $300 necessarily formed part of the whole consideration, as the bid was made and accepted. Appellee O’Keefe’s bid on the surveyor’s office was $69 below the next lowest bidder, and $132 below the next lowest bidder. But all the work under the general contract was clearly contemplated to be let to the lowest bidder on the whole of the subjects embraced in that contract, and not that it should be divided up, because on some parts one bidder was lower than another, yet with all the bidders bidding on the surveyor’s office, one bid was $499.67 lower than O’Keefe, and deducting the latter’s bid of $300 for decorating the court room, the bid was still $199.67 below *235his. "We do not mean to imply that the lowest bid must be received. The statute vests some discretion in the board as to the lowest responsible bidder. Boseker v. Board, etc. (1882), 88 Ind. 267; 11 Cyc. 482; Interstate, etc., Pav. Co. v. Philadelphia (1894), 164 Pa. St. 477, 30 Atl. 383; Douglass v. Commonwealth (1885), 108 Pa. St. 559; Commonwealth, ex rel., v. Mitchell (1876), 82 Pa. St. 343; People, ex rel., v. Kent (1896), 160 Ill. 655, 43 N. E. 760. But we point out the foregoing conditions as showing the possibilities in such manner of bidding, and it was because the bid was conditional, that up to the time of acceptance it. lacked mutuality, because it could not have been enforced by the board, but by acceptance by the board, it probably waived the question so far as it could do so, but it could not waive it as against the public, or a taxpayer, and the lack of mutuality still inheres in it, and it is immaterial that neither of the parties are asking to be relieved from it. Neither of them are in a position to ask its enforcement, or to waive it as against the public or the taxpayer. State, ex rel., v. Goldthait (1909), 172 Ind. 210, 87 N. E. 133; Rissing v. City of Fort Wayne (1894), 137 Ind. 427, 37 N. E. 328; Union School Tp. v. First Nat. Bank (1885), 102 Ind. 464, 2 N. E. 194; State, ex rel., v. Benson (1880), 70 Ind. 481; State, ex rel., v. Hauser (1878), 63 Ind. 155; Mayor, etc., v. State, ex rel. (1877), 57 Ind. 152; Indiana Cent. Canal Co. v. State (1876), 53 Ind. 575; Caldwell v. Board, etc. (1881), 80 Ind. 99; Zuelly v. Casper (1906), 37 Ind. App. 186, 76 N. E. 646; Throop, Public Officers §§21, 551.
It is urged that because the court held in the original opinion that the clause added by O ’Keefe under his general bid added nothing to it, but was a mere separation of the items in bidding on that one contract, if the subjects of that bid had been proper, all that is necessary is to subtract from the whole price bid the unauthorized portions. The answer is that they were not deducted, but were contracted for; and *236second, that even though the utmost good faith was observed, and these were matters of inadvertence, if we should approve of the course adopted it would lead to a train of evils, not because good faith may not be present, but because of inadvertence or mistake as to what is required. To put a case in addition to those suggested in the original opinion: Suppose improper items are embraced in a notice, and one bidder bids on the proper items and also the improper ones, and other bidders bid only on the proper ones, and suppose the latter are lower bidders than the former on the subjects they bid on, but irrespective of the improper items, as to one or more of which there is no guide whatever as to what shall be done, the improper items are embraced in the contract. Is it any answer to say that payment therefor may be refused or enjoined by a taxpayer ? Who can tell how much of the unauthorized items went into the bid on the authorized ones ?
Neither is it material in this case or in any other that all may have bid on all the items. The answer to it all is that even though they did, there was no power to receive such a bid. To sanction such a course, it would only be necessary, in case one item was authorized, to couple with it a dozen unauthorized items, and take bids on the whole.
Counsel proceed on the theory that it is a question between bidders, or between bidders and the board, whereas it is a question of the rights of taxpayers. Counsel in their argument and in the citation of authorities, somewhat extended, as to the rule of divisibility of contracts, and enforcement of those which are legal and separable, overlook the fact that the bid is specific in'tying the acceptance of the bid for the improper subjects to the proper ones, as a condition of doing the authorized work, thereby excluding the application of the rule.
*2373. *236It is insisted that as appellant was a bidder, he is estopped to maintain this action. As a bidder he might be, but he *237is here as a taxpayer, and the taxpayers are entitled to first consideration on the question in hand.
9. Laches on the part of appellant is urged. The suit was instituted within ten days after the contract was awarded, and the evidence of 0 ’Keefe himself is that in that time practically no money had been expended or liability incurred on account of the contract. There was no unreasonable delay in instituting the action; besides it may be questionable whether appellees are in any situation to raise the question.
But it is urged that, relying on the judgment below, and the varying changes wrought in the situation by the opinions promulgated in the case, appellee contractor has proceeded with the work until a considerable expenditure has been incurred by him. This appears by the brief of counsel, and we, of course, cannot be governed by the after-accruing results, and much as the condition he now finds himself in is to be regretted, we are in no situation to extend relief from conditions which he is at least equally responsible in producing.
It is also urged that we are in error in holding that the two biddings were invalid, because embraced in one memorandum. We do not-so understand the opinion, or intend so to hold, but put the case on the ground that it seemed that the repairs on the buildings were of such character, and so coupled with the subjects of heating, wiring and plumbing, and so necessarily allied, that physical obstructions to doing the latter would be encountered by the former being stopped, and that the contractor ought not to be held to the one where the other is declared invalid. Whether we were in error in that respect, would not affect the question under the main contract; and if the other work could be done, or has been done, there is no such connection between the two as to render the plumbing, heating and wiring contract invalid, if it could physically and reasonably be performed and the contractor chose to perform it.
*238Finally it is urged that our opinion implies some degree of moral turpitude on the part of the board. We do not so understand, or mean to imply, but attribute the unfortunate condition to inadvertence, or lack of knowledge. But we are confronted with the question, not only as to what has been done, but what may be done, under appellees’ insistence. McVay v. Town of Lowell (1908), 41 Ind. App. 627, 84 N. E. 778, and eases cited. When called on to determine a question in which the entire public is concerned, the question is not only what has been done, but what may be done under a contrary holding, for statutes of the character of the one before us, like contracts and combinations in restraint of trade, are prohibited, not only by reason of results produced, but in case they tend to that end (Knight & Jillson Co. v. Miller [1909], 172 Ind. 27, 87 N. E. 823, 18 Ann. Cas. 746); and it is just the possibility of that abuse which the statute was meant to correct, whether from proper or improper motives, that leads to no other conclusions than those adopted by the court, and the petition for a rehearing must be denied. .
Note.—Reported in 98 N. E. 33 and 98 N. E. 1002. See, also, under (1, 3) 1913 Cyc. Ann. 1219; (2) 29 Cyc. 1431; (4) 11 Cyc. 511; (6) 11 Cyc. 468; (7) 1913 Cyc. Ann. 1218; (10) 16 Cyc. 780; (11) 11 Cyc. 483; (13) 16 Cyc. 785. As to the right of a building contractor to recover for a substantial performance of his contract, see 134 Am. St. 678. As to the entirety of contracts, see 54 Am. Rep. 624; 59 Am. St. 277. As to who are responsible bidders and how they may enforce their rights, see 50 Am. St. 489. On the question of discretion in choosing between bidders for public contract, see 38 L. R. A. (N. S.) 653. As to the construction of “lowest responsible bidder” or a similar phrase in a statute providing for the letting of municipal contracts, see Ann. Cas. 1913A 500.