¶1 (dissenting). I dissent for two reasons:
¶2 First. I did not agee and do not now agree with that part of the Flynn Case holding that the time limit within which a road project is to be completed must be fixed by tbe Highway Commission and included in the advertisement for bids so that all contractors bid on the same time. The law, of cou.'se, places some discretion in the Highway Commission, and in my judgment a fair and liberal construction of that portion of the law providing that contracts should be let to the lowest responsible bidder and that the work should be completed in the shortest time possible consistent with good business management would require that the matter of fixing the time limit within which a project should be completed be left discretionary with the Commission. In other words, in some projects it might be advisable to fix the time limit within which the work must be completed, and in others not, this to be determined by the Commission in each particular instance in the exercise of its sound discretion. I concede, however, that this proposition is settled by the majority opinion in the Flynn Case.
¶3 Second. The record in this case shows that the bids on this project were opened by the State Highway Commission on April 12, 1927, and the contract was awarded to the successful bidder, McGuire & Cavender, on April 14, 1927.
¶4 It further appears that this work was advertised and contract awarded by the State Highway Commission under the same rules and regulations and in the same manner as the contract involved in Flynn Construction Co. v. State Highway Commission, 125 Okla. 197, 257 Pac. 374. That contract was let on October 12, 1926, and was held valid and binding by this court because same was entered into in good faith under a departmental construction of the law which had -been in force for a substantial period of time and under which numerous other contracts had been made and carried out without question as to their validity.
¶5 The contract in the instant case, as above staged was awarded on April 14, 1927, at a time when the departmental construction *117 had been in force six months longer than when the contract involved in the Flynn Case was entered into. It is true that performance of the contract in the Flynn Case was more near.y complete, but in our judgment there can be no degrees as to performance, and the amount of performance under the contract is immaterial. The successful bidder in the instant case, in order to comply with the law, was required to put up with the Highway Commission a certified check equal to five per cent, of its hid, and has therefore, for practically four months, had a sum of money in excess of $40,000 in the hands of the Highway Commission, and had necessarily held itself m readiness to proceed with the work under the contract as awarded to it, and but for the injunction granted herein would ctoub.less have had the work well under way long before now.
¶6 The authorities holding that a departmental construction of a law when upheld by the courts, become a part of the law itself, are numerous. See Murphy v. Wabash R. R. (Mo.) 128 S. W. 481, and cases therein cited. The department construction of the highway law by the Highway Commission, having been approved by this court in the Flynn Case, has therefore become a part of the law itself. It seems therefore that, under the rule of departmental construction announced in the Flynn Case, supra, the contract involved herein, having been advertised and awarded under the same rules and regulations prescribed by the Highway Commission under the same construction of the law as obtained in the advertising and awarding of the contract in the Flynn Case, should for the same reasons be upheld. Important road projects should not be held up and delayed indefinitely unless it clearly appears that the law has not been complied with or that the State Highway Commission has abused its discretion, and in our judgment it does not so appear in the instant case, but. on the other hand, clearly appears, and has not been denied, that the Highway Commission acted in perfect good. faith herein under its construction of the law which has been in force for several months, and which construction was approved and upheld by this court in the Flynn Case, supra.
¶7 I am therefore of the opinion that the Flynn Case is ample authority for holding the contract awarded herein to be a valid and binding contract, and the injunction granted by the district' court should be dissolved and this work allowed. to proceed under' the contract as awarded on April 14th without further, delay.
¶8 I am authorized to state that Mr. Justice HEFNER concurs with the views herein expressed.