(specially concurring).
I am unable to concur in either the majority or minority opinions. Notwithstanding the objection to multiple opinions, I feel my reasons should be stated briefly. In this case the firm public policy denying recovery to public contractors in order to protect the taxpayers from the evasion of statutory prerequisites by the public body and to take away the opportunity for fraud and collusion between public officials and contracting parties comes in conflict with the basic equitable principle that he who seeks equity must do equity.
The authorities support the position taken by Justice Uhlenhopp in his dissent, but I believe there is merit in plaintiff’s argument that a rule letting a contractor retain all he has been paid under a void contract would encourage officials and those contracting with them under such contract to hasten the work and payment to circumvent mandatory statutes. This danger coupled with the fact that equity should only seek to prevent the district or taxpayers from being unjustly enriched at the expense of a party who acted in good faith, leads me to the conclusion that the best result would be to allow the contractor to retain only the amount by which he can show each property was benefitted by his goods and services. I do not believe the requirement that the contractor show the amount by which the value of the property has been enhanced by his efforts poses any insurmountable difficulty.
This restriction on the amount a contractor can retain would remove all chance of profit from the transaction for him. This fact, when considered along with the rule that he cannot recover any sums still due in either law or equity whether the district was benefitted or not, should provide adequate deterrents to attempts to evade protective statutes without treating innocent victims of uncertain statutory requirements as harshly as they are treated under the majority opinion. It is not realistic to place the entire burden of knowing the statutory requirement on the contractor when it was necessary to have the statute construed by the court.
Insofar as this record shows, there has been no undue haste in the payment, no overreaching, fraud or bad faith. No countervailing equities were advanced against defendants. Under these circumstances, the amount plaintiffs are entitled to recover should be limited by the amount *384by which they and the district have been unjustly enriched.
I do not consider my position here in conflict with my concurrence in Voogd, et al. v. Joint Drainage Dist. No. 3-11, et al., Iowa, 188 N.W.2d 387, filed June 17, 1971.
The contractors were not parties to that action. The question of their good faith was not an issue. Under my position the contractors’ rights to retain any portion of the balance would depend upon the record made if suit is brought against them.
I would reverse and remand the case for a determination of the amount by which plaintiffs have been unjustly enriched.