54 Cal. 289 | Cal. | 1880
The facts of this case are, that on the 5th day of March, 1877, plaintiffs entered into a contract with the Board of Harbor Commissioners of the State of California, (at that time and now composed of the defendants) for the construction of certain slips and the making of certain improvements in and about the harbor of San Francisco. That the contract was duly made and entered into with said Board after due proceedings had, the entire Board concurring; that the Board caused specifications of the works to be prepared, under which the contract was. entered into, and caused the same to be advertised and sealed proposals invited. That plaintiffs submitted a bid for the work under and in accordance with said advertisement, and were awarded and received said contract at
“ An Act for the relief of Cook Talcott and Andrew Onderdonk.
“ The People of the State of California, represented in the Senate and Assembly, do enact as follows:
“ Section 1. The Board of, State Harbor Commissioners are authorized to adjust, audit, and pay out of the Harbor Improvement Fund such amount as Cook Talcott and Andrew Onderdonk may be equitably entitled to, for work done and material furnished in the construction of the new slips at the foot of Market Street, in San Francisco, provided the amount does not exceed the sum of $5,722.50.”
That on the 15th day of March, 1878, plaintiffs duly pre
The foregoing are substantially the facts set out in the plaintiffs’ complaint; and on the filing thereof, the Court below granted an alternative writ of mandamus, on the 12th day of November, 1878.
On the return day of the writ, the defendants interposed their demurrer thereto, assigning the causes of demurrer specified in § 430 of the Code of Civil Procedure; which demurrer was sustained by the Court below, and thereupon final judgment was entered in favor of the defendants. This appeal is taken from such judgment, and the only question presented is as to the sufficiency of the complaint.
It is contended on behalf of the respondents that the concurrent action of all three of the Board of Harbor Commissioners was required under the Act of March 8th, 1878, to adjust, audit, and allow plaintiffs’ claim. In support of this proposition, § 2527 of the Political Code is relied upon. That section reads as follows:
“ No contract or obligation entered into by the Commissioners, which creates a liability or authorizes the payment of money, is valid and of binding force, unless the same is signed by all three Commissioners and countersigned by the Secretary of the Board.”
It is unnecessary for us„ to determine whether the Act of March 8th, 1878, is mandatory or permissive only. The Board proceeded to' act under the authority of the statute, and, in our opinion, they acted legally and efficaciously. Two of the three members constituting the Board adjusted, audited, and allowed the plaintiffs’ claim. This was sufficient under § 15 of the Political Code: “Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.”
The authority exercised by the Board in this case was given to them by a special act, and it is nowhere provided in said act that the concurrence of all three of the members of the Board shall be necessary to the proper exercise of such authority. In the case of People ex rel. Washington v. Nichols, 62 N. Y. 478, the common-law principle on this subject is stated. In that case the Court had under consideration an act of the Legislature appropriating $20,000, or so much thereof as might be necessary, for the purchase of certain relics of George Washington, to be paid only upon the certificate of three persons named therein. Held, that a certificate signed by two of the
But when appraisers act between individuals and the State, it is a matter of “ public concern,” and the majority act as the whole when all have met. (Ex parte Rogers, 7 Cowen, 526.)
The complaint in this case shows that all the members of the Board were present; and we arc of the opinion that the action of the majority was sufficient to adjust, audit, and allow plaintiff’s claim, under the Act of March 8th, 1878.
Judgment and order reversed, and cause remanded, with instructions to the Court below to overrule the demurrer to the complaint.
Myrick, J., and Sharpstein, J., concurred.