113 Cal. 628 | Cal. | 1896
The board of supervisors of the city and county of San Francisco passed a resolution July 8, 1895, directing the superintendent of streets to enter into a contract with the appellant to pave Van Ness avenue from Pacific avenue to Jackson street with bituminous rock, at the rate of seven cents per square foot. Under the contract entered into by virtue of said resolution, the appellant completed the work therein named and thereafter presented its demand, duly verified, to be paid out of the street department fund, for the sum of fourteen hundred and forty-seven dollars and ninety-nine cents, and on October 28, 1895, the board of supervisors passed an authorization for the payment of said demand. Upon its presentation to the respondent, who is the auditor of said city and county, that officer refused to indorse his allowance thereon, or in any way to approve or allow the same, whereupon the appellant instituted the present proceeding to compel him to audit and allow said claim. The respondent set up as an answer to the application that in passing the resolution authorizing the contract with the appellant the board of supervisors acted in excess of its jurisdiction and authority, and that the contract itself was invalid for the reason that no proposals or bidding therefor were invited by the board of supervisors, and that the contract was let without any opportunity for competition. It was shown at the hearing in the superior court that the roadway of Van Ness avenue from Pacific avenue to Jackson street was accepted by the board of supervisors February 24, 1880, under the provisions of the act amendatory of the street law passed April 4, 1870. It was admitted on behalf of the petitioner that none of the acts or steps provided for by section 3 or by section 5 of the street improvement act of March 18, 1885, had been taken or done; that no invitations for sealed proposals or bids for doing the work had been given, and that the contract for the work was made solely by virtue of the resolution of July 8, 1895. The court granted a nonsuit, and denied the petitioner’s
Section 5 of the street improvement act (Stats. 1889, p. 160) declares that, “ Before the awarding of any contract by the city council for doing any work authorized by this act, the city council shall "cause notice with specifications to be posted conspicuously for five days, on or near the council chamber door of said council, inviting sealed proposals or bids for doing the work ordered”; and that the notice of this posting shall be published in the official'paper. The section then provides the mode of making proposals for doing the work, and that they shall be examined and declared by the city council in open session, and that “ 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 improvement to the lowest responsible bidder, at the prices named in his bid, which award shall be approved by the mayor or a three-fourths vote of the city council.” The requirement that the city council shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder is equivalent to a declaration that it shall not accept any other proposal, although it is not required to accept the lowest bid, since it may, in its consideration for the public good, reject all the bids. The requirement that it shall invite sealed proposals before awarding a contract, as well as its obligation to award the contract to the lowest responsible bidder, is, however, universal, and applies to “ any” contract for doing “any” work authorized by the act, irrespective of the character of the street upon which the work is to be done, or of the mode in which the expense is to be paid. Section 20 of the act provides for the acceptance of a street by the
The board of supervisors has no plenary authority to improve its streets, either by virtue of the consolidation act, or under the provisions of the street improvement act. Its power upon this subject, which was originally included in the consolidation act, was expressly repealed by subsequent acts of the legislature, and these in turn have been superseded by the statute commonly called the Vrooman act. To the latter act alone must it look for all authority in the matter, and under the familiar rule that the mode is the measure of the power, this authority is limited by the requirements therein provided for its exercise. The power to order the improvement of an accepted street is not conferred by section 20. That section merely fixes the obligation upon the city to bear the entire expense of such improvement. The powTer to order the work is conferred by the first section of the act, and the character of the work which may be ordered is defined in the second section. Section 1 of the act gives to the city council jurisdiction to order any of the work mentioned in section 2 to be done upon the streets of the city, and the jurisdiction or power with which the council is thus invested extends to “ all streets, lanes, alleys, places or courts” in the city, and is in all cases to be exercised “ under the pro
The facts shown by the record herein do not present for determination the power of the city to “ repair” an accepted street under the provisions of section 25 of the act. The contract in question does not purport to be for repairing the street—its terms being “to pave th-e following streets with bituminous rock laid on a macadam foundation”; and it is not alleged, nor was it shown at the trial, that the street in question had ever been paved with bituminous rock. It would be in violation of a proper construction of the term “ repair,” to hold that it included an original improvement of the street, or work of a different character from that previously done thereon. The provisions of the first part of section 25 do not by their terms apply to accepted streets, but merely authorize the city council to “ repair” streets upon which certain work has been done; and the provisions of the latter part of the section requiring advertising and assessment, when the work to be done upon an unaccepted street is new work of the same character as had been previously done, cannot be construed as importing into the first part of the section a condition that the repairs therein authorized are to be made upon an accepted street. We must assume that if the legislature had intended that the express provision which it
. We do not hold that, before the city council can order the improvement of an accepted street, it is requisite to observe all the steps prescribed in section 3 of the act. By their very terms it is seen that they are intended solely for the benefit and protection of the owners of the property which may be assessed for the expense of the work; but if no part of this expense is to be charged against the property, many, if not all, of these steps would be vain and purposeless, and without the scope of the statute. The purpose and scope of these requirements is indicated by the provision that, after they have been observed, “ the city council shall be deemed to have acquired jurisdiction to order any of the work to be done.” The term “jurisdiction,” implies that the person or tribunal which has “ acquired” it, is thereby empowered to declare or establish an enforceable charge or liability against the person or subject over which it has been acquired; but, in the matter under consideration, if no charge or lien is to be established against the adjacent property, the necessity of thus acquiring jurisdiction therefor does not arise.
The proposition that, because the board of supervisors Eas passed an authorization for payment for the work after its completion, the plaintiff is entitled to recover, cannot be maintained. This proposition is independent of the proceedings under the street improvement act, and concedes the invalidity of these proceedings, but rests upon the estoppel against the city by virtue of its promise to pay for the benefits received by it by reason of the performance of the contract. The invalidity of the plaintiff’s contract under the street improvement act places it in the same position as any other person dealing with the city under the authority conferred upon its board of supervisors. If the board of supervisors did not
The judgment is affirmed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.