116 Cal. 604 | Cal. | 1897
This is an action to foreclose the lien of a street assessment, levied by virtue of a contract for grading and paving in part with basalt and in part with bitumen and for curbing Channel street, in the city of Stockton, from the east line of Hunter street to the west line of California street, etc.
The contract was let by the street superintendent of the city of Stockton on the twelfth day of September, 1892, to one F. J. Owens, who thereafter and on the
The cause was tried by the court without a jury, and upon the written findings judgment was entered in favor of defendant for his costs. The appeal is from the final judgment and from an order denying plaintiff’s motion for a new trial.
There are two prominent questions involved in the appeal. The first relates to the validity of the action of the city council in awarding the contract to F. J. Owens; and the second, whether, conceding the work was not performed in accordance with the specifications of the contract, defendant is iu a condition to take advantage thereof.
The facts upon which the first question turns are as follows: After taking the usual steps for the improvement, and advertising for bids to do the work in regular form, one McCarty bid for the work at twelve thousand and thirty-eight dollars and fifty-nine cents, and accompanied his bid by a good and sufficient bond as by statute required.
One F. J. Owens made a like bid to do the work for twelve thousand and forty-nine dollars and fifty-five cents, accompanying his bid with a bond, etc.
The city council met on the twenty-second day of August, 1892, opened and examined the proposals for doing the work, and thereupon passed a resolution reciting that a former contract for street wmrk had on July 29, 1892, been awarded to McCarty, and that he had failed and refused to enter into a contract to perform the work so awarded to him, wherefore it was resolved that the bond filed by him as security for the former work be declared forfeited, “ and said McCarty is hereby declared delinquent and unfaithful within the meaning of the law, inasmuch as he has failed and refused to make and enter into the contract herein above mentioned.” Thereupon the council rejected the bid of Me
These proceedings are under the act of 1885, usually termed the Vrooman Act, with the amendments thereto of 1889 and 1891. Section 5 of the act as amended in 1891 (Stats. 1891, p. 199), among other things, provides as follows: “ The city council may reject any and all proposals or bids, should it deem this for the public good, and also the bid of any party who has been delinquent and unfaithful in any former contract with the municipality, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvements to the lowest responsible bidder,” etc.
It will be observed from the foregoing quotation that power is given to the city council: 1. To reject all bids if it shall deem it for the public good; 2. To reject the bid of any party who has been delinquent and unfaithful in any former contract; and 3. To reject all bids other than the lowest responsible bidder.
Manifestly, under these provisions, power is conferred upon the council to determine what is for the best interests of the public; who have shown themselves delinquent and unfaithful, and who are responsible bidders.
These are facts to he passed upon by the council, and its determination once reached is as conclusive as the verdict of a jury or the finding of a court upon facts within its jurisdiction. That is to say, the propriety of the action can only be inquired into by such method as the law provides.
The council, by its formal resolution, declared McCarty delinquent and unfaithful within the meaning of the statute, and hence rejected his bid, as it had a right to do, notwithstanding it was some ten or eleven dollars lower than that of F. J. Owens, to whom the contract was awarded. As the council had jurisdiction to hear
2. As to the right of the defendant to object in this action that the work was not properly performed.
The court permitted defendant, against the objection of plaintiff, to introduce evidence tending to show that the concrete was not sufficient in quantity or equal in quality to the requirements of the specifications; that the curbing was not properly dressed, etc., etc. There was a sharp conflict in the evidence on these questions; but the court found in favor of defendant, and that the contract was not complied with on the part of plaintiffs.
The work was accepted and approved by the street superintendent. All the several steps provided by statute were regularly taken, and in due time an assessment to pay for the work was duly levied, a warrant duly issued, a demand for payment duly made, etc. In short, no irregularity is found or complained of except in the manner of the performance of the contract.
Defendant did not make any objection to any act or determination of the street superintendent, or of the city council, and did not appeal to the city council within thirty days after the date thereof, or at any time, in writing or otherwise, and has never filed any protest. Section 11 of the street law of 1885 (Stats. 1885, p. 156) is in part as follows: “ The owner, whether named in the assessment or not, the contractor, or his assigns, and all other persons directly interested in any work provided for in this act, or in the assessment, feeling aggrieved by any act or determination of the superintendent of streets in relation thereto, or who claim that the work has not been performed according to the contract in a good and substantial manner, or having or making any objection to the correctness or legality of the assessment or other act, determination, or proceeding of the superintendent of streets, shall, within thirty days after the date of the warrant, appeal to the city council.”
The section makes the decision of the council final and conclusive upon all persons entitled to appeal, as to all errors and irregularities which the council might have remedied and avoided.
It further provides that no assessment shall be held invalid, except upon appeal to the city council as provided in the section, for errors or informalities or other defects in any of the proceedings prior to the assessment, or in the assessment itself, in cases where notice of intention to order the work done has been duly published as by law required before the passage of the resolution ordering the work to be done.
In Manning v. Den, 90 Cal. 610, it was held that the property owner did not, by failing to appeal to the council, lose his right to resist the payment of an assessment when there had been a failure to perform any one of the jurisdictional prerequisites in the manner provided for by the statute. Harrison, J., speaking for the court, said: “ The provision in the latter part of section 11, that ‘no assessment shall be held invalid except upon appeal to the city council/ etc., has no application to a case in which an appeal is not authorized, or in which, even if taken, the city council could not have remedied the defect.”
A void contract does not become valid by failure to appeal to the board, of supervisors. (Burke v. Turney, 54 Cal. 486; Capron v. Hitchcock, 98 Cal. 430; Brock v. Luning, 89 Cal. 316.)
But as to all matters which may lawfully be corrected on appeal to the city council or other governing body 8f the municipality, and for which an appeal is provided by the statute, the property owner deeming himself aggrieved must prosecute his appeal, failing in
The question as to whether a contract for grading or paving or curbing has been properly performed is not one going to the jurisdiction of the council or affecting the validity of its acts, and, as an appeal is expressly provided by the eleventh section of the act of 1885, it is under that section .the only remedy, and defendant having failed to take such appeal was estopped from litigating the question in this action. (Fanning v. Leviston, 93 Cal. 186; Perine v. Forbush, 97 Cal. 312; Jennings v. Le Breton, 80 Cal. 8, and cases there cited.)
It follows that the court below erred in admitting testimony to show that the work was not performed as by the contract required.
Respondent urges that the contract for the work was invalid because of the omissions therein of matters •essential to a valid contract under the statute. The contract is not set out in the record, and we have no means •of determining its validity.
The court below found that the contract was entered into, and, in the absence of a showing to the contrary, we must presume it was a valid one.
It is further urged that there is no allegation in the •complaint that such contract contained such essential matters.
The complaint avers the execution of the contract in pursuance of the award whereby J. F. Owens agreed to perform the work in a workmanlike manner, under the direction and to the satisfaction of the street superintendent, and to furnish all the necessary material required for the execution of the‘work, and in compliance with and as required by the plans and specifications thereof, and therein prepared by the city surveyor and .adopted and approved by the city council, and on file in
No demurrer was interposed to'the complaint, and no objection based upon its insufficiency seems to have been interposed in the court below.
It must follow that no objection can be heard here, except that it fails to state a cause of action. Libbey v. Elsworth, 97 Cal. 316, is relied upon by respondent in support of his contention. In that case a demurrer was sustained to the complaint, and this court in affirming the judgment held, among other things, that a general allegation that the contract was one by which the contractor agreed to do the work therein in accordance with specifications, which are not set out, and under the direction and to the satisfaction of the superintendent of streets, was not sufficient, and that it must affirmatively appear from the statement of the contract that it contained all the essentials to make it a valid contract under the statute.
In the case at bar the pleader failed to set out the specifications which formed an important part of the contract, and a demurrer for that reason would have been good.
Defendant, however, not only did not demur, but he set out these very specifications in his -answer, and averred they were, the specifications referred to in the complaint. This cured the error.
We recommend that the judgment and order appealed from be reversed, and that the parties and each of them have leave to amend their respective pleadings if they shall be so advised.
Belcher, C., and Chipman., C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and the
McFarland, J., Temple, J., Henshaw, J.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.
