¶1(dissenting): My dissent from the opinion of the majority of the court has its origin in one point of difference between my associates and myself. With them I agree that the statutes and ordinances providing for the collection and disposal of garbage in the City of Wilmington intend that contracts made by authority thereof and covering a period of three years in their operation shall be in writing, but the point at which our views diverge is whether such contracts in writing may be made and completed by advertisements, bids and awards, or, to be complete, must the terms of the advertisements, bids and awards be thereafter rewritten in formal instruments and signed by the contracting parties. To the latter view, upon the case of McCormick v. Fisher, as an authority, the majority of the court adhere, while I hold to either view, not upon the authority of McCormick v. Fisher, but according as the intention of the contracting parties to enter into either kind of a contract is expressed and made known by them.
¶2The Fisher case disclosed one thing and decided another. It disclosed the fact that there is in our city laws no legal requirement that city contracts for the collection of garbage shall be in writing and signed by the mayor, and it decided that when a contract is made by the city through one of its contracting agencies, and the city and the other contracting party intend the contract to be signed and sealed by them, the mayor, who is empowered by law to affix the seal of the municipal corporation, but who is not given an option or discretion in that regard, may be commanded to execute the instrument, and that his act in that respect is purely ministerial. The court in the Fisher case in no sense held, that under the ordinances of the City of Wilmington, a contract for the removal of garbage must be reduced to such a writing as the mayor may sign or be compelled to sign, and it went no further 26 *402than to hold that when the city, through its legally constituted contracting agency, entered into a contract that was intended by the city to be put into writing and executed by the city, it was the business of the mayor to sign and seal the contract for the city, whether he liked it or not.
¶3This being the effect and the extent of the decision in the Fisher case, an examination of the bid and award in the Fisher case and the bid and award in this case, make the two cases readily distinguishable.
¶4In the Fisher case, it appears that the council, then the agency of the city authorized by law to contract for the removal of garbage, supplied the bidder with a blank form upon which he was required to make his bid. Upon that form he made his bid and from that form it appears that both the bidder and the council contemplated in the event of the award being made to him, that a contract should thereafter be prepared and signed by the mayor. There is no doubt about this, for the bid says so. Therefore, in that case there was nothing for the court to do but command the mayor to sign the contract.
¶5The bid in this case was likewise made upon a blank form supplied the bidder by the board of health, now the agency of the city authorized by law to contract for the removal of garbage. Upon that blank form the bid was made by the relator and the bid as made contains nothing, either by expression or implication, that indicates or suggests the contemplation of a subsequently prepared written instrument to be signed by the mayor.
¶6By the award in the Fisher case, the council accepted the bid, one of the terms of which provided for an instrument to be signed by the mayor. By the award in this case, the board of health accepted the bid, none of the terms of which provided for an instrument to be signed by the mayor, or provided for anything further to be done. The award in neither case varied the terms of the bid and in each case amounted to an unconditional acceptance of an offer.
¶7There is abundant authority to sustain the proposition that, in the absence of express requirements of statutes or ordinances to the contrary, a department of a municipal government, having *403power to contract for the municipality, may make and complete contracts upon bids and awards and to an extent that will satisfy the statute of frauds, when the bids are in writing and the awards are written in the minutes of the body. When such a contract is made between parties having legal capacity to propose and accept, the contract is complete upon the proposal and acceptance, unless, indeed, it appear that the parties considered the offer and its acceptance as preliminary to something subsequently to be done. In this particular case there is not a word in the bid and award to indicate that a subsequent writing was intended; there is nothing to suggest the need of such a writing, for all that such a writing could contain is already written, and anything more or less than is already written in the advertisement, bid and award, if put into a subsequently written instrument, would make that instrument present a contract different from the one into which the parties in fact entered. The complete character of the contract is not affected by its lack of formality, so long as the parties have the power to contract and neither the parties nor the ordinances require a formal written instrument to be signed by the mayor. I am therefore of opinion that, in the absence of fraud, failure to exercise a discretion, or other matter not appearing in the record that might invalidate the agreement, the contract between the relator and the city was complete when the bid was accepted and the award made.
¶8The prayer of the petition being that the mayor be compelled to approve the bond offered by the relator to insure the performance of the contract, it is urged that unless there is a written contract signed by the mayor there is nothing to which the condition of such a bond may relate or upon which the condition of such a bond may be predicated. As a written instrument, prepared with strict regard to legal formalities, signed by the chief magistrate of the municipal government, and sealed with the seal of the municipal corporation, could legally contain nothing more and nothing less than what is already contained in the advertisement, bid and award made by the relator and the board of health, it appears to me that the condition of the bond can relate to the terms and undertakings expressed in those instruments with as *404much legal precision as though the same terms and undertakings were again expressed in another instrument.
¶9I am of opinion that, upon the case as presented by the petition, the rule should be made absolute and the alternative writ of mandamus should issue.