Thе right of the trial court to sustain without leave to amend the demurrer to the complaint depends primarily upon the question whether, in a sixth class city, the council is legally required to award a contract for advertising legal notices to the lowest responsible bidder, or has discretion in the matter.
So far as material here, the allegations of the complaint are that Burlingame is a city of the sixth class; that plaintiffs are copartners, publishing, in the city of Burlingame, a weekly newspaper of general circulation, established as such by court decree, called “The Editor of Burlingame” (hereinafter for brevity called “The Editor”); that plaintiffs own personal property in Burlingame assessed for, and upon which they pay, taxes; that the only other newspaper of general circulation in Burlingame is the “Burlingame Advance and Burlingame Star” (hereinafter for brevity referred to as “The Star”) • that pursuant to the Municipal Corporations Act, the city council invited bids for the publication of all the city’s legal notices from December 1, 1946, to July 1, 1947; that in accordance with the advertisement, plaintiffs submitted a bid for publication in “The' Editor” of all legal notices, fоr the price of 80 cents per square for the first publication and 40 cents per square.for each subsequent publication; that the publisher of “The Star” submitted a bid of $1.00 per square for the first publication and 50 cents per square for each subsequent publication; that the unit price bid by the publishers of “The Star” is 25 per cent greater than that bid by plaintiffs; that on December 16, 1946, the city council awarded the contract for the publication of legal notices for the balance of the fiscal year to “The Star”; that such award was illegal and void, because, first, the contract was awarded for less than one year, and secondly, the contract was not awarded to the lowest bidder, but to the highest bidder. The complaint then alleges that certain advertisements werе published by “The Star” for the city pursuant to the contract, and asks that the award and contract be declared null and void, .and that the city be enjoined from paying the charges for the advertising done pursuant to the contract.
Defendants demurred generally to this complaint, and the court sustained the demurrer without leave to amend.
Plaintiffs contend that the demurrer should not have been considered, because of the claimed failure of defendants *25 to comply with rule XIX, subdivision 1, Rules of the Superior Court (213 Cal. LXXXVIII) which requires a memorandum of points and authorities to accompany the demurrer. The only attempted compliance with this rule was the mention at the bottom of the demurrer of section 430 of the Code of Civil Procedure (the section setting forth grounds of demurrer), and McQuillin on Municipal Corporations, without giving volume or page. However, this defect was cured by the fact that no objection was made in the lower court and that the court requested both parties to file briefs, which they did.
Award to Highest Bidder
For the purposes of this appeal, the allegations of the complaint must be taken as true and we must assume that the council awarded the contrаct to the highest, and not the lowest, bidder.
The portion of the Municipal Corporations Act which governs the letting of contracts of this nature by a sixth class city is section 874 (Stats. 1883, p. 93, as amended; 2 Deering’s Gen. Laws, 1944 ed., Act 5233, p. 1995). It provides: “Public Works; When to be done by contract; Letting of contracts: Performance by day labor: Emergencies: Contracts for publication of legal notices. In аny project for the erection, improvement and repair of public buildings and works; in all work in or about streams, bays, or water fronts, or in or about embankments, or other works for protection against overflow; in all street or sewer work exclusive of maintenance or repair; and in the furnishing of any supplies or materials for any such project inclusive of projects for maintеnance or repair of streets or sewers, when the total expenditures required for the same exceed the sum of one thousand dollars ($1,000), the same shall be done by contract and shall be let to the'lowest responsible bidder, after notice, . ...” It then goes on to provide as to the character and method of notice and other matters, including the right of the council by a fоur-fifths vote to perform the work by day labor or purchase materials in the open market without further observance of the preceding provisions of the section. There is then a provision concerning awarding contracts in the event of emergency without previous advertising. Then comes a new paragraph which reads: “Contracts for publication of legal notices. In the event that there is more than one newspаper of general circulation printed and published in such city the city council shall, *26 annually, prior to the beginning of each fiscal year, publish a notice inviting bids, and, contract for the publication of all legal notices required to be published in a newspaper of general circulation printed and published in said city. Said contract shall include the printing and publishing of all such legаl notices during the ensuing fiscal year. ’ ’ If there is only one newspaper in the city then the council may contract with it without advertising for bids.
Plaintiffs contend that the requirement that the contract be let to the lowest bidder set forth in the public works portion of the section, controls the second paragraph relating to contracts for publication of legal notices.
There has bеen no interpretation of this latter portion of the section by the courts of this state. Plaintiffs cite a number of cases to the effect that the primáry purpose of requiring competitive bidding on municipal contracts is to prevent fraud and collusion and for the protection of public funds. Among others, they cite
Attorney General
v.
Public Lighting Commission,
An examination of section 874 shows that there is quite a difference between its two parts. The requirement that contracts be let to the lowest responsible bidder appears only in the first paragraph relating to public works, etc., and then only where the “total expenditures required” exceed $1,000. *27 WMle the object of statutes requiring municipal contracts to be awarded on the basis of competitive bidding is to prevent waste of the public money, corruption and favoritism (as established by the many cases cited by plaintiffs) there is a very sound ground for differentiating between contracts for public works and the publication of legal notices, which differentiation the Legislature apparently had in mind. Generally speaking, contracts for public works are to be completed in a similar manner by whichever contractor gets the. job, but the question of the value of legal advertising involves the circulation of the particular newspaper, that is, the number of people who will see the notices. Public policy requires that there be no favoritism in the letting of municipal contracts, but, at the same time, it also requires that noticеs required by law to be published should reach as many persons as possible. In a given city, there may be two newspapers of general circulation, one a daily with a tremendous circulation, the other a weekly with a very small circulation. While the latter might be able to publish legal notices much cheaper than the former, it would be far more in the interests of the public that the сity’s legal notices be published in the paper of larger circulation. At least, in awarding a contract, the city council should be permitted to weigh that consideration against the matter of cost, and unless the council abuses its discretion, its determination should stand.
Plaintiffs argue that unless the contract is awarded to the lowest responsible bidder there is no object in calling for cоmpetitive bids, that it would be a waste of public funds to advertise for bids and then give the contract to the highest bidder. However, that does not necessarily follow. Advertising is necessary to give publicity to the fact that a contract is to be awarded, and hence the action of the council is kept open to public scrutiny. Secondly, the council cannot arbitrarily award the cоntract to the highest bidder. While, as here, the council has discretion to determine which is the better bid, having in mind both price and other matters affecting the value to the public, including the question of circulation, it is a wise discretion that must be used, and the courts can control any abuse of that discretion.
Even if, as claimed by plaintiffs, “the lowest responsible bidder” portion of section 874 applies to contracts for publication of legal notices, which it does not, the case of
West
v.
Oakland,
"We are of the opinion, however, that this is altogether too narrow and binding a сonstruction to place upon these provisions of the Oakland city charter. There are many occasions in the experiences of municipal government when the quality of the thing to be supplied in the course of the public service depends upon conditions which differentiate bidders, and require the exercise of a sound discretion on the part of city officiаls in determining whether the wares or device which each individual bidder offers in the form of his own exclusive design are such as will meet the particular requirements of the intended work. In order to cover such eases it is quite usual in the provisions of city charters to find such terms as ‘lowest and best bidder,’ or as ‘lowest responsible bidder,’ and the like; and these phrases have been given by the courts a pаrticular meaning, in which it must be presumed they are used by the framers of city charters in the absence of other limiting clauses. The term ‘lowest responsible bidder’ has been held to mean the lowest bidder whose offer best responds in quality, fitness, and capacity to the particular require *29 ments of the proposed work; and that where by the use of these terms the council has been invested with disсretionary power as to which is the lowest responsible bidder, having regard to the quality and adaptability of the material or article to the particular requirements of its use, such discretion will not be interfered with by the courts in the absence of direct averments and proof of fraud. (2 Dillon on Municipal Corporations, 5th ed., sec. 811, p. 1223, and cases cited.) And even when in statutes and charters the term ‘lowest bidder’ only is employed, the courts have held that in determining whether a bid is the lowest among several others, there may be cases where the quality and ability of the thing offered—in other words, its adaptability to the purpose for which it is required—may be considered. ’ ’
Plaintiffs contend that the lowest bidder must be assumed to be the lowest
responsible
bidder unless the council makes a finding to the contrary, and cites McQuillin on Municipal Corporations (no volume or page),
Seysler
v.
Mowery,
In
Thoits
v.
Byxbee,
*30
In
Hodgeman
v.
City of San Diego,
It is apparent, therefore, that the rule in this state is that it is not necessary for a city council awarding a bid to other than the lowest bidder to make a specific finding or record to the effect that the lowest bidder was not the lowest responsible bidder, and that to attack the award, the attacker must allege and prove fraud.
Contract for Less Than Year
There is no merit to the contention that because the contract was let subsequent to the beginning of the fiscal year and for less than a year period, it is void. Section 874 provides that the council “shall, annually, prior to the beginning of each fiscal year” call for bids and that the contract let pursuant to the bids received “shall include the printing and publishing of all such legal notices during the ensuing fiscal year.” The fiscal year runs from July 1 to June 30. Here the call for bids was not published until November 1, 1946, nor the contract аwarded until December 16. The contract merely covered advertising for the balance of the fiscal year. While it is true that the statute requires the council to invite bids and contract before the beginning of the fiscal year, and unless some good reason existed for the delay, the council probably would be derelict in its duty for failing so to do, there is nothing in the law that says the council cannot do belatedly what it should have done on time. Public policy would require that there be in existence a contract so that legal notices could be published as required by law, and the failure of the council (if there was any failure) to obtain such contract on time *31 would not deprive the council of the right to remedy the situation as soon as possible, whether the directiоn in the statute is mandatory or merely directory.
Sustaining Demurrer Without Leave to Amend
The complaint failing to state a cause of action, the court correctly sustained the demurrer. Plaintiffs contend that they should have been given leave to amend. But how could they have amended without stating an entirely new cause of action f The complaint was brought on the sole theory that, as a matter of law, the council must award the contract to plaintiffs as the lowest bidder. On page 26 of appellant’s opening brief there appears: “The complaint clearly alleges the illegality of the contract in that it was not let to the lowest responsible bidder. It is set forth that the plaintiffs were the lowest bidder, and, accordingly, they were
prima facie
entitled to receive the contract.” Obviously, to amend, рlaintiffs would have to charge fraud, a cause of action quite different from the theory on which they proceeded. Nowhere in the complaint or briefs is there the slightest intimation that there was any fraud committed by the council, or that the plaintiffs claim that there was. In view of these circumstances, it can-, not be said that the court abused its discretion in denying leave to amend. In
Pagett
v.
Indemnity Insurance Co.,
The judgment is affirmed.
Peters, P. J., and Ward, J., concurred.