(dissenting).
The trial court found that in June 1971 heavy rains caused damage to the Van Metre road in northern Jones County creating an emergency requiring immediate repair of such road. We are bound by such finding. Plaintiff repaired the road at the request of the County Commissioners and under the direction and supervision of the County Highway Superintendent.
Under the circumstances it was impracticable and impossible for the County Commissioners to have plans and specifications prepared and to comply with the competitive bid statutes. The consequent delay could be dangerous and could expose the county to liability.
This Court can take judicial notice of the fact that roads do not run along every section line in western South Dakota. Closing the Van Metre road for any length of time would shut off a large rural area from access to market, schools, and medical care and attention.
*478The broad general rule governing emergency situations of this nature is stated in 64 Am.Jur.2d, Public Works and Contracts, § 39, page 891, as follows:
“Bearing in mind that requirements of competitive bids and the letting of contracts to low bidders have for their object insuring economy and the exclusion of favoritism and corruption in awarding public contracts and in the furnishing of labor, services, property, and materials for public uses, statutes requiring competitive bidding should not be given such construction as to defeat their purpose or impede usual and regular progress of public business and public improvements, and their requirements may be dispensed with where such advertisement will not result in competitive bidding for the work.
“When contingencies arise and services, material, and property are needed immediately and competitive offers and written contracts would be unserviceable or impossible, the statutes do not apply, because application could not have been intended under these circumstances. Indeed, many provisions requiring competitive bidding for public contracts and the letting of such contracts to low bidders contain express exemptions where an emergency requires speedy action or prompt performance of a contract, or the contract is ‘for actual emergency work.’ What constitutes an emergency within the meaning of such a statute is not easy to determine; much depends upon the special circumstances in each case, and adjudicated cases are not very helpful. Generally, however, the term ‘emergency’ in this connection signifies a situation which has suddenly and unexpectedly arisen and which requires speedy action— some unexpected necessity requiring immediate, or at least quick, action. * * *”
This emergency exception was recently recognized by the North Dakota Court in Merchants Nat. Bank & Trust Co. v. City of G. F., N.D., 130 N.W.2d 212, in which the Court concluded:
*479“Certainly there was not sufficient time to prepare specifications and solicit bids by five days notice published in the official newspaper. This was therefore a case where competitive bidding was not practical. The regulation above quoted contemplates that the city council shall approve the contract after negotiations have been completed. Clearly, the city council had the power to waive competitive bidding and approve the contract for the work ordered or approved by the city manager. The contract was not ultra vires. This is a case where the rule laid down by this court in Northwestern Sheet & Iron Works v. Sioux County, 76 N.D. 451, 36 N.W.2d 605, should be applied. In that case we said:
‘A public corporation may not escape liability for the reasonable value of goods obtained and retained by it through transactions coming within the general powers of the corporation and the contracting corporate board, which are procedurally defective without paying the reasonable value thereof when equity and good conscience require payment’.”
The claim in State ex rel. Small v. Hughes County, 81 S.D. 238, 133 N.W.2d 228, was not similar or comparable as there was no emergency involved therein.
In my opinion plaintiff is entitled to compensation under the provisions of SDCL 31-12-23:
“It shall not be necessary for plans and specifications to be prepared for the construction of temporary grading, repair work, or turnpiking operations with blade graders on the county highway system, and the same may be done by day labor or private contract made by the board of county commissioners. Such work shall be supervised by the county highway superintendent who shall certify to all claims for such work.”
I would therefore reverse and remand this action with instructions to allow plaintiff the actual and necessary cost of temporary grading and repair performed on the Van Metre road.