Nicolson Pavement Co. v. Painter
Before: Sanderson, Sprague
Synopsis
Street Improvements in San Francisco—Power of Board of Supervisors.— The Board of Supervisors of the City and County of San Francisco, in respect to street improvements, have whatever power is conferred by the statutes on that subject, and no other. The power which they possess must be exercised in the mode prescribed by said statutes, and in no other. “ The mode in such cases constitutes the measure of the power.”
Idem—Policy of the Statutes on the Subject.—The evident policy of the general law upon the subject of street improvements in San Francisco, as passed in 1862 and amended in 1863, (Stats. 1862, p. 391; 1863, p. 525,) is to secure and protect the persons who are made to pa.y the cost of the improvement from official mismanagement and wanton or reckless exercise of power, by advising them of what is proposed to be done, by enabling them to do the work themselves, if they so elect, and especially by securing the performance of the work by responsible persons and upon the lowest terms. This policy cannot be defeated by the Board of Supervisors, by setting aside the measures which have been provided for its enforcement.
Idem.—The Board of Supervisors has no power, in making street improvements, so far as conferred by said statutes of 1862 and 1863, to do any kind of work which, for any cause, cannot be let or contracted for in the mode prescribed in said statutes, or which the owners of the frontage are legally prohibited from performing.
Idem—Nicolson Pavement.—Where said Board, while assuming to act under said statutes of 1862 and 1863, advertised for proposals to put down on a street in said city the hficolson pavement, which had been patented under the laws of the United States, and awarded a contract therefor to B., who owned the exclusive right to put down said pavement in said city, and who alone put in a bid for said contract: Held, that the Board exceeded its authority, and the contract was void.
Idem—Power op the Board op Supervisors to Contract por Nicolson Pavement.—Whatever power said Board of Supervisors has in relation to the Nicolson pavement is derived from the statute relating thereto, (Stats. 1865-6, p. 720,) under which the power can be exercised only upon the petition therefor of a majority of the owners, or their agents, in frontage, and upon the condition that the pavement shall not cost to exceed twenty-eight cents in coin per square foot. Where the Board advertised for proposals and awarded a contract for the construction of said pavement in said city, without having received said petition: Held, that the contract was void.
Opinion — Sanderson
By the Court, Sanderson, J.: The principal question involved in this case, and the only question which we propose to consider, relates to the power of the Board of Supervisors of the City and County of San Francisco to cause the streets of the City of San Francisco to be paved with what is known as the Nicolson pavement. We shall consider, first, the power of the Board in relation to the fiiicolson pavement, under the general law upon the subject of street improvements, as passed in 1862, and amended in 1863, (Stats. 1862, p. 391; 1863, p. 525;) and second, the power of the Board in relation to the improvement of streets, as affected by the statute of 1866 in relation to the pavement of streets with the Nicolson pavement, (Stats. 1865-6, p. 720,) so far as the exigencies of the present case require.
We repeat what we have so often had occasion to say, that in the matter of street improvements the Board of Supervisors have whatever power the statutes upon that subject have conferred upon them, and no other; and that the power which they possess must be exercised in the mode prescribed by the statute, and in no other; for, as was well said by Mr. Chief Justice Field, in Zottman’s Case, 20 Cal. 102, “the mode in such eases constitutes the measure of the power.” With this principle kept steadily in view, little difficulty ivill be found, we apprehend, in solving the questions presented by the record in this case.
By the third section of the Act of 1862 the Board is empowered to order the whole or any portion of a street to be “ paved ” or “ repaved.” By the succeeding sections it is provided how and by what proceedings they shall exercise the power so conferred. They may move in the matter of their own volition, (See. 4,) or upon the petition of the owners of more than one half of the frontage (Sec. 5); but in either case they are required to proceed by first publishing a notice for the period of ten days of their intention in the premises. If nothing intervenes to stay further action, they [706]are next required to advertise for sealed' proposals or bids for the contemplated work. (Sec. 6.) The bids being in, they are next required in open session to open, examine, and publicly declare the same, and thereupon award the work to the lowest responsible bidder. They are next required to publish a notice of such award, and to allow the owners of the major part of the frontage to take the contract upon the same terms, if they shall so desire. If the owners do not elect to take the contract within the specified time, it is then to be given to the bidder to whom it was awarded.
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