35 Cal. 699 | Cal. | 1868
Lead Opinion
The principal question involved in this case, and the only question which we propose to consider, relates to the power of the Board of Supervisors of the City and County of San Francisco to cause the streets of the City of San Francisco to be paved with what is known as the Nicolson pavement. We shall consider, first, the power of the Board in relation to the fiiicolson pavement, under the general law upon the subject of street improvements, as passed in 1862, and amended in 1863, (Stats. 1862, p. 391; 1863, p. 525;) and second, the power of the Board in relation to the improvement of streets, as affected by the statute of 1866 in relation to the pavement of streets with the Nicolson pavement, (Stats. 1865-6, p. 720,) so far as the exigencies of the present case require.
We repeat what we have so often had occasion to say, that in the matter of street improvements the Board of Supervisors have whatever power the statutes upon that subject have conferred upon them, and no other; and that the power which they possess must be exercised in the mode prescribed by the statute, and in no other; for, as was well said by Mr. Chief Justice Field, in Zottman’s Case, 20 Cal. 102, “the mode in such eases constitutes the measure of the power.” With this principle kept steadily in view, little difficulty ivill be found, we apprehend, in solving the questions presented by the record in this case.
By the third section of the Act of 1862 the Board is empowered to order the whole or any portion of a street to be “ paved ” or “ repaved.” By the succeeding sections it is provided how and by what proceedings they shall exercise the power so conferred. They may move in the matter of their own volition, (See. 4,) or upon the petition of the owners of more than one half of the frontage (Sec. 5); but in either case they are required to proceed by first publishing a notice for the period of ten days of their intention in the premises. If nothing intervenes to stay further action, they
From this mode, as already stated, the Board has no power to depart—it is their chart and compass—it is “the measure of their power.” The policy of the statute is apparent—it is to secure and protect the persons who are made to pay the cost of improvement from official mismanagement and abuse—from the reckless or wanton exercise of power, by advising them of what is proposed to be done, by enabling them to do the work themselves, if they so elect, and especially by securing the performance of the work by responsible persons, upon the lowest terms. This policy cannot be defeated by setting aside the measures which have been provided for its. enforcement; to do so would be to nullify the will of the Legislature, and brush aside all the safeguards which that body has provided for the protection of the property holders of San Francisco.
If, as already stated, the mode is the measure of the power, it necessarily follows that the Board has no power to do any kind of work which, for any cause, cannot be let or contracted for in the prescribed mode, or which the owners of the frontage are legally prohibited from performing. It is true that the third section, which confers the power to “pave,” does not restrict the Board to any particular kind of pavement, and if the question turned exclusively upon that section, the Board would have the power to contract at its election for any kind in use; but the power to “pave,” so far as the Board is concerned, is the power to contract for a
The case shows that the Eicolson pavement is an" invention which has been patented under the laws of the United States, and that the plaintiff alone owns and holds the right to put it down in the streets of San Francisco.
To advertise for sealed proposals where there can be but one bidder, to open them in open session, to examine and publicly declare them, and thereupon award the work to the lowest responsible bidder, where there is and can be but one, to notify the owners of the frontage, if they so elect, to come forward and perform work which by the paramount law of the land they are prohibited from performing under heavy responsibilities, would be to play as broad a farce as was ever enacted behind the footlights. The law does not permit itself to be thus trifled with, nor allow its ministers to thus substitute pretense for performance.
From what has been said it follows that whatever power the Board has in relation to Kicolson pavement must be considered as coming from the statute of 1866. Under that statute the power can be exercised only upon the petition of a majority of the owners, or their agents, in frontage, and upon the condition that the pavement shall not cost to exceed twenty-eight cents, in coin, per square foot. The case shows that the Board acted without any petition on the part of the property owners, and it therefore follows that their proceedings were also void under the Act of 1866, as well as those of 1862 and 1863.
Judgment and order reversed.
Dissenting Opinion
dissenting:
I dissent from the conclusions arrived at by my associates. The questions discussed in the prevailing opinion are to be determined by the statute of April 2d, 1866, entitled “An Act to provide for paving the streets in the City and County of San Francisco,” (Stats. 1865-6, p. 720,) in connection with sections three, four, and five of the statute of April 25th, 1863, entitled “An Act amendatory of Article IV of an Act entitled an Act to repeal the several charters of the City of San Francisco, and to consolidate the government thereof, approved the 19th day of April, 1856, repealing sections thirty-six to sixty-four, inclusive, and Acts and parts of Acts . amendatory and supplementary thereof, and substituting this Act for said Article IV.” (Stats. 1862, p. 391.) These two Acts, so far as relates to the subject matter of paving streets, etc., in the City and County of San Francisco, are in pari materia, and must be read and construed together. (People ex rel. Board of Harbor Commissioners v. Broadway Wharf Company, 31 Cal. 33; McMinn, Exr. v. Bliss et al., 31 Cal. 122; Taylor v. Palmer, 31 Cal. 240.)
“When there are two laws upon the same subject, they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the latter Act. The law does not favor a repeal by implication, and, unless the former Act be referred to, or is clearly repugnant to the provisions of the latter, both must stand.” (Merrill v. Gorham, 6 Cal. 42; Sedgw. on Stat. and Const. Law, p. 127.)
Says Mr. Chief Justice if el son: “As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subjects, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy of the two is irreconcilable. Hence a repeal by implication is not favored; on the contrary, Courts are bound to uphold the prior law if
Where both Acts are merely affirmative, and the substance such that both may stand together, both shall have concurrent efficacy. (1 Bl. Com., 89; Dr. Foster’s Case, 6 Cope, 107; Bank v. Commonwealth, 10 Barr, 448.)
Upon a careful examination of the two statutes above referred to, I am entirely satisfied that, although relating to the same subject matter, they are not, in terms or intent, repugnant or inconsistent.
The manifest design and purpose of the statute of 1866 is to secure the Hicolson pavement wherever a majority of the owners “in frontage of any lot or block of land, fronting on any street, lane, alley,” etc., shall express, in the manner provided, a desire and preference for that particular kind of pavement, and to provide a means by which the wishes of such majority may control the discretion of the Board of Supervisors as to the kind of pavement to be laid; and as a protection to the minority of owners in frontage, in case of action upon petition of such majority, the Act fixes a limit to the cost of such pavement.
Under the Act of 1862 the Board of Supervisors has unlimited discretion as to the kind of pavement to be adopted; and proceeding under that Act, in the manner therein provided, they might (as in this instance) adopt the Uicolson pavement, or any other kind of pavement.
Admitting that the mode of exercising the power, as prescribed by the statutes, is the measure of the power conferred upon the Board, and that in the exercise of the power in accordance with the prescribed mode, it might occur that some one of the safeguards provided by the statute for the protection of lot owners is necessarily weakened or wholly destroyed, it would not, I apprehend, follow as a necessary result that the power is impeached or nullified, nor should such a result follow as a consequence of the partial inadaptability of the mode to a particular subject matter clearly
It is assumed by appellant that inasmuch as the right to lay down Ficolson pavement is by letters patent secured to and held by a single individual or company, it is impossible, under the mode prescribed, to secure to the parties who are assessed for the improvement the benefit of competition in the price of the work, or the right to perform the work themselves at the rate of the lowest bid. With greater propriety it may be assumed that the right to lay down this particular kind of pavement is available to any and all alike who may desire to use it upon any particular street or block, by paying to the owners of the exclusive right a specified sum for each square foot or yard of such pavement which they might desire to lay down, or a percentage upon the contract price of the work; that this exclusive right in the hands of its holders is property, or a commodity in market for sale in limited measure to all and any who are willing to pay for the same at its market value, and that any and all persons who may desire to enter into competition in the performance of the labor and furnishing the materials in the construction of this pavement may obtain the right from the patentee or his assigns, and that the property owners may do the same, if they should elect to do the work in the same maimer and to the same extent as any other commodity or materials necessary to be used in the construction of the proposed improvement. I have been unable to appreciate the fatal objections to the practicable application of the mode prescribed, when applied to Ficolson pavement, which seem to be invoked to negative the power of the Board.