Matthews v. Town of Livermore

SHAW, J.

The plaintiff appeals from a judgment entered against him by the court below upon sustaining a demurrer to the complaint.

The object of the plaintiff’s action is to enjoin the town of Livermore, and the other defendants as its trustees, from proceeding to construct a system of sewers for said town, by the direct employment of labor and purchase of material, instead of having it done by contract let to the lowest bidder, as the plaintiff claims they should in order to comply with the law and act within their powers. It appears that the cost of the sewer system would exceed one hundred dollars. Livermore is a city of the sixth class. Plaintiff was a taxpayer and sues in that capacity. The court below was of the opinion that a city of the sixth class has power, under statutes in existence, to build sewers costing more than one hundred dollars, without letting the work by contract, and gave judgment refusing the injunction.

The act of 1883 (Stats. 1883, p. 93), provides for the organization, incorporation, and government of municipal corporations. Section 862 of that act, relating to powers of cities of the sixth class, as amended in 1903, declares that “The board of trustees of such city shall have power: 5. To construct, establish and maintain drains and sewers. ... 17. To do and perform all other acts and things necessary or proper to carry out the provisions of this act.” (Stats. 1903, p. 93.)

Section 874, as amended in 1897, provides that “in the erection, improvement, and repair of all public buildings and works, in all street and sewer work, . . . and in furnishing any supplies or materials for the same, when the expenditure required for the same exceeds the sum of one hundred dollars, the same shall be done by contract, and shall be let to the lowest responsible bidder, after notice by publication in a newspaper of general circulation printed and published in such city or town, for at least two weeks.” (Stats. 1897, p. 89.)

These sections are parts of one act relating to a particular subject and they are to be construed together and harmonized

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so far as possible. So construed, it cannot be denied that the general power to construct sewers given by section 862 is limited and modified, with regard to sewers costing more than one hundred dollars, by the specific provisions of section 874 requiring public works of that magnitude to be done by contractors upon contract let to them after due advertisement and an opportunity for competing bids. Unless there is some other or later statute enlarging their powers, or modifying these provisions, the board of trustees were attempting to exceed their powers and their action should have been enjoined, as prayed for.