Crummey v. Popp

LANGDON, P. J.

This is an original proceeding in

mandamus

to require the respondent superintendent of streets to enter into a contract with petitioner for the performance of certain street improvements in the city of San

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Jose, and to require the respondent city manager to approve a bond offered by petitioner to secure the payment of labor and materials under such contract. The respondents defend upon the ground that the respondent Clark, as agent of property owners, is entitled to the contract instead of the petitioner.

It would serve no useful purpose to outline the pleadings or the facts of the case. It is sufficient to say that it is conceded that the municipal authorities initiated proceedings for the improvement of a public street under the “Improvement Act of 1911” (Stats. 1911, p. 730; Peering’s Gen. Laws 1923, Act No. 8199), and that all these proceedings were in due form and within time until the respondent Clark, as agent for the property owners, gave notice that they elected to take the contract at the same price at which it had been awarded to the petitioner. The claims of the respective parties arose at this point in the proceedings and the sole question to be determined on this action is whether, under section 12 of the “Improvement Act of 1911,” where the improvement is to be made under the district plan, property owners may elect to take over the contract.

The act in question provides an alternative method for all public improvements specified in section 2 and was intended to be all-inclusive, though not repealing any of the other acts providing for similar improvements. Any interpretation of the act must therefore be made in view of the well-known rule that where one act is intended to be complete in itself and some specific provision therein is susceptible to two interpretations—one which effects that purpose, and the other which would require resort to some other act or proceeding—the former interpretation should be favored.

The specific provision which is in issue here is found in section 12, reading, in part, as follows: “The owners of three-fourths of the frontage of lots and lands liable to be assessed . . . may . . . elect to take said work and enter into a written contract to do the whole work at the price at which the same has been awarded.” The petitioner argues that this section is applicable only when the work has been agreed to be done on the “front-foot” plan of assessment, while the respondents argue that it is appli