Improvement of Highway—Construction of “Good Boads Law”— Discrepancies between Preliminary Beport and Final Specification—Contract Valid.—Under the “Good Boads Law” of 1907, it was not intended that the preliminary report of the highway commissioners to the supervisors should go into detail, or that a slight or reasonable departure therefrom in the final specifications for the doing of the work not destructive of the general plan proposed, should render the contract void.

Id.—Purpose of Preliminary Beport—Election—Bonds—General Plan—Departure.—The main purpose of the preliminary report is served when the election is called and held. If the bonds are authorized, and the money obtained thereon, it may be expended for the improvement of the roads mentioned in the report, the general plan of which must be adhered to. It would require a radical departure therefrom to invalidate a contract thereafter made in good faith.

Id.—Mere Variation in Details of Improvement—Asphaltic Macadam.—No mere variation in the details of the same kind of improvement between the preliminary report and the final specifications will invalidate the contract. Where the preliminary report stated that where' asphaltic macadam was made, it should be composed of a mixture of the best grade of hard tough crushed stone and best asphalt, and other materials, and the final specifications allowed either gravel or crushed rock to be used at the option of the contractor, subject to requirements as to quality and to the approval of the engineer of the commissioners, there is a mere variation in the details of the same kind of improvement, not vitiating the contract.

Id.—Letting of Contracts for Public Work—Certainty Essential.— It is a general principle of law applying to the letting of contracts for public work to the lowest bidder, upon plans and specifications previously adopted, that they must be sufficiently certain and definite upon all of the details of the work which affect its cost to apprise bidders of all the essential and substantial parts of the work and enable them to know with reasonable accuracy the outlay they will have to make in performing the work to be contracted for.

Id.—Reasons of Rule Requiring Certainty in Specifications—Uncertainty Affecting Rights Involved..—The reason of the rule requiring certainty in the specifications of a public improvement in the contract to be let therefor is, in part, because uncertainty therein deprives property-owners of the knowledge necessary to undertake the work for themselves, as the statute provides they may; and, in part, because it deprives bidders of like knowledge and thereby tends to prevent the fair competition and resulting low cost of work, which is the principal object of the rule.

Id.—Sufficient Support of Rule—Applicability—Taxes—Bonds— Assessment.—The latter reason for the rule is as persuasive as the first, and is sufficient to support the rule. The rule applies as well where the cost is to be paid with money already raised by taxation, or by the sale of bonds, as where it is to be raised after the work is done by assessment upon the benefited property.

Id.—Exception to Rule—Details not Ascertainable in Advance— Unforeseen Contingency.—There is an exception to the rule requiring certainty, where details of construction do not appear, and cannot with reasonable diligence and cost be ascertained in advance, or which will be disclosed only in the doing of the work, or where there is any contingency which reasonable foresight would not observe.

Id.—Adjustment of Exceptions.—Exceptions to the rule may occur in every work of considerable magnitude, and they must be left to be adjusted in accordance with general provisions in the contract, or by the discretion of the person or board supervising its performance.

Id.—Exceptions not Invalidating Contract.—Ho exceptions to the rule can have the effect to invalidate the contract. It is held that certain provisions enumerated fall within exceptions to the rule, and. do not make the contract void.

Id.—Interpretation of Contract for Improvement—Bules.—In interpreting the contract for the improvement of the road, the rule must be applied that the whole of the contract is to be taken together, so as to give effect to every part, each clause helping to interpret the other, and that the contract must receive such interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect.

Id.—Strict Construction of Proceedings in Invitum—Inapplicable Bule.—The extreme strictness of construction against the validity of contracts made in proceedings in invitum, whether in all cases justifiable or not, is not to be observed in a proceeding for a road improvement, where the property-owners have already consented to the raising of the money by taxation of their property, and the officers are simply charged with the duty of expending it lawfully and in good faith for the purposes designated.

Id.—Elevations Shown by Engineer—-New Elevations Arising from Change of Plans by Supervisors.—Where, by the contract, the improvement was to conform in grade to the elevations shown upon the plans, “or to elevations which may be given by the engineer,” and the supervisors were empowered to change the plans for the cuts, fills, slopes, and dimensions, and if a change was made thereunder, the engineer would necessarily have to furnish new elevations therefor, the contract did not give the engineer authority, of his own motion, to change the elevations, but only required the contractor to take changed elevations of the engineer, so far as they apply to changes made by the supervisors under this reservation of power, and the provision for changed elevations, so understood, is within the law.

Id.—Provision for Crushed Book or Gravel to be Construed with Conditions—Competition Favored—The provision that crushed rock or gravel, at the option of the contractor, may be used in the composition of the asphaltic macadam must be construed with the accompanying conditions prescribing the qualities and characteristics necessary to each kind of material to make it fit for the purpose, and authorizing the engineer of the commission to see that the material was up to the standard specified. The bidders were thus informed of the requirements in either case, and the provision tended to favor competition rather than to hinder it.

Id.—Bond to Secure County against Suits by Patentee—Condition —Non-Bequirement of Licensee—Validity.—Where a bond was required to protect the county against suits by the patentee of asphaltic macadam, but not if it appears that the contractor had a license from the patentee, and it does not appear that any contractor could not obtain a license therefor upon payment of royalty, it was within the discretion of the supervisors to take proper precautions against loss by the county, and it does not appear that such conditional provision for a bond would favor one bidder above another, or tend to prevent fair competition.

Id.—Bids for Various Thicknesses of Macadam.—Where bids were asked on various thicknesses of macadam, and there is no foundation for the claim that there was material difference in the profits to the contractor on any particular degree of thickness, the provision in the contract that the pavement should in general have a uniform thickness of four inches, and that the contractor should not reduce it without the consent of the engineer, does not affect the legality of the contract.

Id.—Surface Coating.-—Where the surface coating was to be paid for by the square foot, the direction that it should be applied to the whole road or any part of it, as the engineer should decide, was not unlawful.

Id.—Provision for Extra Work in Excavating Soft Spots Developed by Heavy Holler.—The provision for extra work in excavating soft spots developed in the use of a heavy roller is valid, and comes within the rule regarding unforeseen contingencies.

Id.—Decision of Engineer as to Places where Gravel Foundation should be Laid and Thickness.—The specification that the engineer should decide as to the places where the gravel foundation should be laid and its thickness, is not objectionable, since the contractor is to be paid therefor at a fixed price per ton for the amount of gravel used. The decision of the engineer would not injuriously affect him.

Id.—Specifications for Extra Work.—It is a wise precaution to insert in a contract for a large improvement specifications for the payment of extra work not included in the contract. It is not to be assumed that any extra work was contemplated to be done in an unlawful manner or to an unlawful extent.

Id.—Alteration of Plans—Deduction of Work.—If an alteration of the plans authorized to be made under the contract results in a reduction of the work, the contractor would not be entitled to the full price, but the county would be entitled to a reduction in price in proportion to the decrease in the work, such reduction to be computed at the contract rate as far as possible.

Id.—Quantum Meruit for Extra Work.-—-Where work is due under a special contract at estimated or stipulated prices, and there is a deviation from the original plan by consent of the parties, the estimated or stipulated price is not excluded, but is the rule so far as the special contract is concerned, and for the extra work he is entitled to recover upon a quantum meruit.

Id.—Just Provision for Extra Work.—In view of the principle allowing an appropriate reduction in the price in the event of decreased work, a provision for compensation for extra work is fair as to all parties, and cannot be supposed to prevent competition in bidding.

Id.—Invalid Provisions—Exclusion of Unnaturalized Aliens.—The provision in the specifications that, except by permission of the highway commissioners, no unnaturalized alien shall be employed, is invalid and unenforceable when attempted by public authorities, who have no right to put restriction upon the contractor which can only hinder the work and which constitutes a direct,attempt to discriminate against one class of bona fide residents of the state in favor of another class, and violates treaty obligations and the principles of the constitution.

Id.—Violation of Provision by Contractor.—A violation of such provision by the contractor would not defeat his right to recover the-contract price upon the performance of the work.

Id.—Performance of Work in Good Faith—Money Baised upon Bonds—Presumed Knowledge and Disregard of Provision.— Where the contract has been let, the work has been performed under-it in good faith, and the people have voted the bonds and realized-the money therefrom and no facts have been shown to indicate that, such provision had any effect upon the bids, the contractor must be-presumed to have known that it was void, and to have disregarded it,, and to have made his bid with that understanding.

Id.—Invalid Specification Collateral to Improvement—Validity of-Contract.—The invalid specification did not concern or affect the character of the improvement, but was wholly collateral thereto, and! the presumption being that the parties disregarded the collateral and invalid specification, and there being nothing tending to prove or-indicate the contrary, it follows that the contract was properly-awarded and lawfully made.

Id.—Allowance to Contractor by Supervisors—Befusal of Auditor-to Issue Warrant—Mandamus.—Where, after the contract was-, fully performed and the board of supervisors had allowed a claim-against the “highway improvement fund” for work done in the construction of the road in question and the county auditor refused to draw his warrant upon such allowance, mandamus will lie to compel, him to draw the same.