(concurring in part and dissenting in part).
I would concur that the case should be remanded for further trial on issues essential to the decision of the case.
The only issue tried in the trial court was the amount due the contractor. On appeal, the state and county now claim the contract was void. It is impossible to decide this issue without evidence and a finding from the trial court on the issues of:
1. Whether an emergency existed, and
2. Whether the actions of the agent of the State Highway Commission amounted to an approval of this contract, if in fact it was an emergency contract.
SDCL 31-14-24 and 31-14-25 provide the procedures available for emergency contracts for repair or rebuilding of bridges. The procedure is as follows:
SDCL 31-14-24. “Whenever an emergency arises requiring immediate expenditure for the repair or rebuilding of bridges and approaches to bridges, when such bridges and approaches to bridges are required to be built immediately, and on such short time that in the judgment of the board of county commissioners the public would be seriously inconvenienced in awaiting the regular advertising for bids for such building and rebuilding of bridges and approaches, the board of county commissioners may enter into contract for any such building or rebuilding of bridges and approaches to bridges without advertising for the letting of any contract therefor.”
SDCL 31-14-25. “Before any contract is let by any board of county commissioners under § 31-14-24, the necessity for such emergency contract must first be ap*68proved by the department of transportation and any contract let thereunder must in all respects be first approved by the department.”
This court has stated the general proposition that a contractor is not entitled to recover upon an agreement with county officials or for benefits received by a county from work done when the county does not comply with competitive bidding and written contract requirements. Bak v. Jones County, 1973, 87 S.D. 468, 210 N.W.2d 65. However, the recent pronouncement in Bak distinguishes that case from the situation here. In discussing whether an emergency existed or was even relevant in construction of a new road, the court stated:
“In connection with the claim of emergency, in each case where a governmental subdivision is allowed to contract or have work done on an emergency basis it is specifically set forth in a statute. * * No such statute for counties has been called to our attention, except * * * SDCL 31-14-24 which authorized a county with the approval of the State Highway Commission to repair or rebuild a bridge when an emergency arises.” 87 S.D. at 474, 210 N.W.2d at 68.
In this case there was not only a statute authorizing such county action, but there was also a general belief by all parties involved that they were conforming to such statute. The county admits that “[t]he County Commissioners were evidently under the impression an emergency existed and a contract did not have to be let to bids.” In addition, there is evidence that the State Highway Commission gave its approval to such emergency action.
In the event that the contractor cannot show compliance under these statutes, the trial court should determine the benefits received under an implied contract. This court ruled in Seim v. Independent District of Monroe, 1945, 70 S.D. 315, 17 N.W.2d 342, that a governmental body may be held liable upon an implied contract for benefits received,
“where the [county] is given the general power to contract with reference to a subject-matter, and the express contract which it has assumed to enter into in pursuance of this general power is rendered invalid for some mere irregularity * * * and where the form or manner of entering into a contract is not violative of any statutory restriction upon the general power of the governing body to contract nor violative of public policy.” 70 S.D. at 319, 17 N.W.2d at 344.
Where Hamar acted in good faith, relying on the emergency authority of the county, it would be no violation of public policy to compensate him for the benefit the county received.