Gurtz v. City of San Bruno

SPENCE, J.

Plaintiffs, as residents and taxpayers of the City of San Bruno, brought this action seeking to have declared null and void a certain contract granting to defendant Louis Tournahu an exclusive franchise for the removal of garbage in said City of San Bruno. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiffs, defendants appeal.

The City Council of the City of San Bruno adopted “An ordinance defining garbage and rubbish and providing for the keeping, collection, removal and disposal thereof and for making contract granting exclusive franchise with relation thereto”. Thereafter sealed proposals were invited for the awarding of an exclusive franchise. By resolution of the city council, defendant Louis Tournahu was awarded an ex-

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elusive five-year franchise in accordance with his bid or proposal theretofore submitted. Pursuant to said proceedings, the contract was made with said defendant. Plaintiffs’ attack upon said contract was based solely upon the failure of the city council to comply with the terms of the so-called Broughton Act (Stats. 1905, p. 777) in granting said franchise. Said act is entitled, “An act providing for the sale of street railroad and other franchises in counties and municipalities, and providing conditions for the granting of such franchises by legislative or other governing bodies and repealing conflicting acts”. It provides that, “Every franchise or privilege to erect or lay telegraph or telephone wires ... or to exercise any other privilege whatever . . . shall be granted upon the conditions in this act provided, and not otherwise”.

Defendants admitted that the conditions of said act had not been complied with but contended first, that said act did not apply to the granting of the contract under attack and second, that if the act did apply, plaintiffs could not maintain their action as the exclusive remedy was in

quo warranto.

(Code Civ. Proc., sec. 803.) The trial court found and concluded that the contract constituted a franchise or other privilege within the meaning of the Broughton Act, that said act had not been followed, and that plaintiffs were entitled to judgment declaring said contract null and void.