dissenting.
I cannot agree with my 'brethren in holding that the provision relating to competitive bids applies to the contract in question, and that an incorporated cooperative association cannot lawfully engage in the practice of architecture in this state.
1. The provision concerning competitive bids does not apply to the employment of architects, civil engineers, superintendents or inspectors of building construction, or others possessing professional skill, scientific knowledge or technical learning. As was said in Gulf Bitulithic Company v. Nueces County (Tex. Civ. App.), 297 S. W. 747, 754: “The value of such services is not to be measured by a mere matching of dollars, so to speak; it is not to be determined upon the irrational assumption that all men in the particular class are equally endowed with technical or professional skill, knowledge, training, and efficiency, nor are such services rendered more desirable because offered more cheaply in a competitive bidding contest. The selection of a person to perform services requiring those attributes calls for the exercise of a wise and unhampered discretion in one seeking such services, for it involves not only those attributes, but the qualities of reputation and personal and professional trustworthiness and responsibility as well. ’ ’ And with specific reference to architects, we find in Miller v. Boyle, 43 Cal. App. 39, 44, 184 Pac. 421, this quotation from the opinion in another case: “An architect is an artist. His work requires taste, skill, and technical learning and ability of a rare kind. Advertising might bring many bids, but it is beyond peradventure that the lowest' bidder might be the least capable and most inexperienced, and absolutely unacceptable. As well advertise for a lawyer, or civil engineer for the city, and intrust its vast affairs and important interests to the one whu would work for the least money. ’ ’
On the subject generally, see 3 McQuillin, Municipal *265Corporations (2d Ed.) §1292; 2 Dillon, Municipal Corporations (5th. Ed.) §802; Tackett v. Middleton (Tex. Com. App.) 280 S. W. 563, annotated in 44 A. L. R. 1143, 1150; Hibbs v. Arensberg, 276 Pa. 24, 119 Atl. 727.
2. But it is said, in effect, that the service specified in (c) of the contract is superintendence, and that whatever may be said as to the other provisions, the contract, so far as it relates to superintendence, is void.
In Colorado Springs v. Coray, 25 Colo. App. 460, 139 Pac. 1031, cited in the majority opinion, three of the judges thought that the C'oray contract came within the terms of the statute concerning competitive bids, whereas two of the judges took the opposite view. In his opinion, Judge Hurlbut said: “I agree with the court in reversal of the judgment, and with its reasoning generally, except that part which holds that the statute quoted, sec. 6579, Revised Statutes, 1908, is applicable in this ease to appellee. * * * I think this character of service is necessarily one requiring skill, experience and special knowledge, and brings the one performing it within the category of engineers, architects, surveyors, attorneys, etc. I am convinced that the legislature, in passing the statute, did not contemplate as coming within its provisions, as to competitive bidding after advertisement, any person employed by the city to render services calling for special skill, knowledge or experience. New York, Texas and Virginia have on this subject statutes somewhat similar to our own. The appellate courts of New York and Texas, and the federal court of Virginia, have all held that the statute does not apply to engineers, superintendents, etc. I fail to find where an appellate court of any state has directly passed upon and construed a statute similar to our own, contrary to the cases mentioned: City of Newport News v. Potter, 122 Fed. 321, 58 C. C. A. 483; City of Houston v. Glover, 40 Tex. Civ. App. 177, 89 S. W. 425; City of Houston v. Potter, 41 Tex. Civ. App. 381, 91 S. W. 389; Horgan & Slattery v. City of New York, *266114 App. Div. 555, 100 N. Y. Supp. 68.” And Judge Bell thus expressed his views: “I concur in the conclusion of my associates, that the judgment of the trial court shall he reversed, but prefer to base my concurrence on errors committed by the trial court in giving instruction number 2, * # *. It is my opinion that the legislature did not intend, by the enactment of see. 6579, Revised Statutes of 1908, that a municipality should advertise for and reecive bids for such technical, professional or incidental assistance as it may deem wise to employ in guarding the interest of the city against the neglect of contractors in the performance of their undertakings.” In the majority opinion there is this important statement that differentiates the Coray case from the present one: “It is not claimed that plaintiff was an engineer or architect, or possessed technical skill not possessed by other experienced contractors and builders.” In the present case, on the contrary, the superintendence provided for is by architects—skilled, technical, professional service. The decision in the Coray case, therefore, does not apply to the facts in this case ¡- but were it otherwise, even a unanimous decision of the Court of Appeals would not be controlling here.
That superintendence of construction work belongs to the technical or professional class necessarily excepted from the operation of the provision concerning- bids, was recognized by this court in Dalby v. Longmont, 81 Colo. 271, 256 Pac. 310, cited in the majority opinion. The resolution provided that Dalby be employed “to superintend the finishing of the new reservoir, furnish his own machinery and tools, and that the work be carried on under the supervision of Mr. Bice-, city engineer, Mr. Dalby and Mr. Shumaker. ’ ’ He was to- be paid the lump sum of $2,500 for both his services and the use of the equipment. The contract was let to Dalby without bids. We said: “Dalby’s work was not, at least was not wholly, technical or professional because he was to employ and did employ his own machinery and tools and was to be *267and was supervised by city officials.’ ’ We therefore held the contract to be invalid. The implication is that if the contract had been for superintendence only, the provision concerning bids would have no application. And see 3 McQuillin, Municipal Corporations (2d Ed.) §1292, where the author cites cases to the proposition that such a provision does not apply to contracts for t)ie service of “a superintendent or architect to supervise and make suggestions relative to work let under competitive bidding. ” In the present case the contract for the construction of the building was let under competitive bidding. So also in 44 A. L. R. 1156, note, it is said: “A municipality may engage a civil engineer to prepare plans for and supervise the construction of a public improvement without first calling for bids, as this is a service calling for special skill to which a provision as to letting contracts on bids is inapplicable. ” And in Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096, the same statement is made with reference to the employment of a civil engineer to plan and supervise the construction of roads. Indeed, our Architects Act provides that one engaged in the planning “or supervision” of the erection of buildings for others “shall be regarded as an architect.” C. L. §4692.
This case is not one involving services of a mere superintendent who is not an architect and who does not possess technical skill beyond that of experienced contractors and builders. The association was organized by a group of licensed architects, one of the purposes being, to quote from the articles of incorporation, “By the professional cooperation and collaboration of all its members to secure for, and to provide municipal, county, state and national governments with the highest and best expression of the art of architecture in the design and construction of public building's, structures and improvements.” The contract contemplated that the combined artistic skill of that group should be exercised, not only in the preparation of the plans and specifications, but *268also in tlie inspection, supervision and superintendence of the construction of the building, a building expected to cost several million dollars. Thus, the construction contract provides that the association shall furnish additional instructions, by drawings or otherwise ; that as the work progresses the contractor shall submit copies of all shop or setting drawings and schedules to be passed upon by the association; and that the contractor shall provide full size plaster models of all ornamental carved and molded granite, lava stone, terra cotta, or other building stones, said models to be set up at the location and height at which they appear in the building, for the inspection and approval of the association, and if not approved they shall be remade until finally approved.
3. I cannot agree that the reason for the exception in cases of contracts for technical, professional and artistic services is not present in this case. The city, in the exercise of a free, unhampered choice, selected, in preference to one architect, an association of architects of ability, organized, as we have seen, to advance the art of archi-. tecture, to secure, by professional cooperation and collaboration of all its members, for municipalities, counties and governments the highest expression of the art of architecture in the designing’ and construction of public building’s and improvements; and, specifically, to render such service for the city of Denver. The city had confidence in the artistic skill, and in the ability and trustworthiness of the association, just as persons have confidence in certain incorporated banks, insurance companies and industries, because of confidence in those who conduct their affairs. In the present case the city took ample precaution to secure the continuance of the present officers, directors, advisory architect and chairmen of the principal committees, and the building’ superintendent, who is to work under the direction of the association. Changes in the personnel can be made only with the consent of the mayor.
4. The court holds that corporations cannot practice *269architecture. That position does not impress me as sound.
The association was incorporated under tjie Co-operative Association Act of 1913. Section 2 of that act (C. L. §2414) permits the incorporation of such associations “for the co-operative transaction of any lawful business.” Architecture, of course, is a lawful business. Like all other lawful kinds of business, it is subject to reasonable regulation under the police power.
Section 4692, C. L., provides that: “Any * * * corporation * * * engag-ed in the planning- or supervision of the erection * * * of buildings for others * # * shall be regarded as an architect within the provisions of this act, and shall be held to comply with the same. ’ ’ Amended section 4691, C. L., forbids any person, firm or corporation to practice architecture without a license. This indicates that it was contemplated that corporations may be licensed to practice architecture. If it were otherwise, the statute would have forbidden any person or firm from practicing architecture without a license, and would have forbidden corporations from practicing architecture at all. Section 4682, C. L., empowers the board of examiners to adopt all necessary rules, regulations and by-laws to govern its proceedings, not inconsistent with the law. Section 4686, C. L., provides that: “The board shall adopt rules and regulations for the examination and registration of applicants * * It is stipulated that the board adopted, among other rules and regulations, one to the effect that the board “do hereby approve and recognize as architects and empower to practice as architects all * * * companies or associations incorporated as architects, when each and every member are bona fide licensed and registered architects.” It is. stipulated that each and every member of the Allied Architects Association is a bona fide licensed and registered architect. Of course, there was not issued a paper, entitled “License,” certifying that the association had passed satisfactorily an examination, and therefore was entitled to practice *270architecture. We must assume that that is what was meant by t¡he statement, in the same stipulation that set forth the above regulation, that “no license to practice architecture has ever been issued to the corporation.” We must so construe the provisions of the statute referred to above as to make them harmonize, if possible. It cannot be assumed that when the Legislature, in the Architects Act, expressly mentioned corporations in the manner above stated, it meant nothing by the words used. Some effect must be given to them.
The law permits incorporated co-operative associations to engage in any lawful business. It contemplates the practice of architecture by corporations, and the licensing of corporations for that purpose, and forbids them to practice without being licensed. We cannot assume that the Legislature intended to impose conditions impossible of performance, for that would be, not the regulation, but the prohibition, of a perfectly lawful occupation, and therefore an unconstitutional exercise of the police power. It is obvious, therefore, that an examination of a corporation, being impossible, is not, and cannot be, required; and that it was not intended that a license, using the word in the sense of a certificate that an applicant has satisfactorily passed an examination and therefore is licensed to practice, should be issued in the case of a corporation. Binford v. Boyd, 178 Cal. 458, 174 Pac. 56. Some other way of satisfying the board of examiners that the public mil receive the protection to which it is entitled should be sufficient. The board, pursuant to the authority vested in it, adopted a regulation that fully meets the requirements. It should be held that there was a substantial compliance with the law, and that, within the meaning- of the law, the association was duly licensed to practice architecture. Indeed, it may be that the requirements of the board went farther than was necessary. If the Legislature had expressly forbidden corporations to practice architecture unless all of the members were licensed architects, it probably would be *271held to be an unconstitutional exercise of the police power. Liggett Drug Co. v. Baldridge, 278 U. S. 105, 49 Sup. Ct. 57. How much more open to constitutional objection is the statute, as construed by the court in the present case, that absolutely bars a lawful corporation from engaging in a lawful occupation.
In the Liggett case, supra, a statute of Pennsylvania prohibited ownership of a pharmacy or drug store, or interests in corporations, partnerships or associations owning such stores, by other than licensed pharmacists. The court held that mere stock ownership in such a corporation can have no real or substantial relation to the public health so as to justify the exercise of the police power in the manner attempted by the statute, and that the statute was invalid as denying due process of law under the Fourteenth Amendment. After calling attention to other statutes of the state, the court said: “It, therefore, will be seen that without violating laws, the validity of which is conceded, the owner of a drug store, whether a registered pharmacist or not, cannot purchase or dispense impure or inferior medicines; he cannot, unless he be a licensed physician, prescribe for the sick; he cannot, unless he be a registered pharmacist, have charg’e of a drug* store or compound a prescription. Thus, it would seem, every point at which the public health is likely to be injuriously affected by the act of the owner in buying*, compounding*, or selling drugs and medicines is amply safeguarded. The act under review does not deal with any of the things covered by the prior statutes above enumerated. It deals in terms only with oionership. It plainly forbids the exercise of an ordinary property right and, on its face, denies what the Constitution guarantees. A state cannot, “under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them,’ ” citing cases.
How much more remote is the relation between the practice of architecture by an incorporated association, *272and the- public health or safety! The public health and safety may lawfully be, and they are, amply protected by the elaborate provisions of the Building Code, and, if more were needed, by the provision that no one but a licensed architect can plan or supervise the‘ erection, enlargement or alteration of buildings for others.
A California statute established a board of architects, and empowered the board to examine applicants to practice and to issue licenses to those who pass such examinations. It made it a misdemeanor “for any person to practice architecture without a certificate in this state ’ ’; but provided that the act should not prevent any person from furnishing plans or other data “for buildings for other persons, provided the person so furnishing such plans or data shall fully inform the person for whom such plans or data are furnished that he, the person furnishing such plans, is not a certified architect. ’ ’ A corporation that was not a certified architect furnished building plans to the defendant, without informing the defendant that the corporation was not a certified architect. An assignee of the account sued the defendant for the services rendered. The court held that the act does not prevent a corporation from employing* certified architects to prepare building* plans and specifications and furnish them to others for compensation. A judgment for the plaintiff was affirmed. Binford v. Boyd, 178 Cal. 458, 174 Pac. 56.
The case of People v. Painless Parker, 85 Colo. 304, 275 Pac. 928, cited in the majority opinion as conclusive on this branch of the case, differs from the present case in important particulars. There are no provisions in the statute there involved similar to' amended section 4691 and section 4692, C. L., supra, relating to architects, and the facts in the two cases and the controlling principles are different. In the Painless Parker case, distinguishing* it from Liggett Drug Co. v. Baldridge, supra, Mr. Justice Campbell, after calling* attention to the conclusion in the Baldridge case that the “act in question ere*273ates an. unreasonable and unnecessary restriction upon private business/’ said, at page 312: “This clearly differentiates the applicable principles of law where restrictions are placed upon a private business, and where restrictions and regulations which are, as in the case now before us, as to matters that affect the public health like the practice of dentistry. ’ ’
The construction given by the court in the present case brings the statute perilously near, if not actually over, the line separating the constitutional from the unconstitutional. Such construction should be avoided if the statute can reasonably be given a construction that will not raise a serious doubt as to its constitutionality. U. S. v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658; U. S. v. Delaware & Hudson Co., 213 U. S. 367, 29 Sup. Ct. 527. As we have seen, such a construction is neither necessary nor reasonable.
For the reasons stated herein, the judgment, it seems to me, should be affirmed.