Meuser v. Risdon

California Supreme Court Oct 15, 1868Published

Before: Sanderson

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Holding. The court held that the Board of Supervisors must formally order the reletting of street improvement contracts in accordance with statutory procedures, and that the Clerk lacks authority to initiate such proceedings independently. Furthermore, because the assessment constitutes a tax, the city's actions must strictly conform to the statute, and the doctrine of ratification does not apply to validate unauthorized acts against a lot owner.

Issues

Whether the Clerk of the Board of Supervisors has the authority to initiate the reletting of street improvement contracts without a specific order from the Board.
Whether a general order by the Board can authorize the Clerk to determine when a reletting is necessary.
Whether the doctrine of ratification applies to proceedings to impose a tax on a lot owner for street improvements.

Disposition. reversed

Quotations verified verbatim against the opinion

“the Board must move in the matter by passing an order directing notice of the letting to be published and inviting bids. The Clerk of the Board, of his own motion, has no power in the premises”

“Each proceeding to improve streets in San Francisco is necessarily a separate and independent. proceeding, and must stand or fall by itself.”

“the plaintiff sues as the assignee, or in the place of the city, to collect a tax levied by her, and, like her, he must show that the entire proceedings on the part of the city have been in strict conformity with the statute”

Synopsis

Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.

This was an action to recover eight hundred and fifty-eight dollars and fifty-five cents, the amount of an assessment levied on lots in San Francisco for grading the street opposite to their fronts. The complaint asked that the above amount be decreed a lien on the lots, and that they be sold. No personal judgment was prayed for.

The case was tried by the Court below on the following agreed statement of facts:

The Board of Supervisors of the City and County of San Francisco, having regularly declared their intention to macadamize Valencia street from Market to Fourteenth, and having acquired jurisdiction to order the same to be done, passed the resolution ordering the same to be done on the 12th day of June, 1865.

Said Board having ordered the said work to be done, as aforesaid, and having caused a notice inviting sealed proposals for doing the said work to be posted and published as required by law, and proposals therefor having been made, did, on the 17th day of July, A. D. 1865, award the contract for doing the said work to one J. H. Shafer, notice of which award was published as required by law; and on the 19th day of July, A. D. 1865, the owners of the major part of the frontage of lots and lands liable to be assessed for said work elected to take the said work, and did, on the 19th day of July, A. D. 1865, enter into a written contract with the Superintendent of Public Streets and Highways to do the whole of said work, at the price at which the same was awarded to the said J. H. Shafer. The said owners having entered into the contract to do the said work, as aforesaid, did not do the same, but utterly failed to perform the said contract. Afterward, the Clerk of the Board of Supervisors gave a notice, by posting and publishing in the proper place and newspaper, inviting sealed proposals for doing the said work. The Board did not authorize the Clerk to give the said notice, and did not in any manner cause the said notice to be given, unless that the resolution ordering the said work, passed on the 12th day of June, A. D. 1865, in which were these words: “and the Clerk of this Board is hereby directed to advertise for proposals for doing the said work,” conferred such authority upon the Clerk, and unless such authority was conferred by the following resolution, which was passed by the Board of Supervisors on the 15th day of August, 1864, viz: “ Resolved, That the Clerk of this Board be and is hereby authorized, under the' direction of the Committee on Streets, Wharves, Grades, and Public Squares, to ro-advertisc for proposals for street work for which no bids shall have been received, or wherein contractors shall have failed to perform work awarded to them or to execute contracts entered into.”

By the Court, Sanderson, J. : The sixth section of the statute in relation to the improvement of streets in San Francisco (Stats. 1862, p. 398) provides among other things that the Board of Supervisors, before giving out contracts for street work, shall cause public notice to be given, in the manner therein directed, inviting sealed proposals for the performance of the work contemplated; that the Board shall award the contract to the lowest responsible bidder; that notice of the award shall be published for a certain time, within which the owners of the major part of the frontage may elect to take the contract; that if the owners take the contract, but fail to commence the work within a certain time, the Superintendent shall contract with the original bidder to whom the work was awarded, but if the bidder neglect for a certain time to enter into a contract, the Board of Supervisors shall again publish for proposals, the same as in the first instance; that if the owners taking the contract enter upon its performance, but fail to complete it within the time fixed by the contract, or such extensions of time as may have been granted by the Board of Super[244]visors, the Superintendent shall report their delinquency to the Board of Supervisors, who may relet the unfinished work, after having pursued the formalities provided for in the first instance.

From these provisions of the statute it is plain that where, from a failure on the part of the contractor or owners to perform the work, it becomes necessary or the Board deems it expedient to relet the contract, the same course must be pursued which is prescribed for the letting in the first instance; that is to say, the Board must move in the matter by passing an order directing notice of the letting to be published and inviting bids. The Clerk of the Board, of his own motion, has no power in the premises, his relation to the second or any subsequent letting being the same as to the first. In the present case the Board made no order for the second letting. This defect cannot be cured by any general order of the character of that of the 15th of August, 1864. The Board has no power to make general orders, applicable alike to all future proceedings. Each proceeding to improve streets in San Francisco is necessarily a separate and independent. proceeding, and must stand or fall by itself. A general order of that character involves a transfer by the Board of its own appropriate functions to its Clerk, for its effect is to cast upon that officer the power to determine whether the contingency provided for by the statute has arisen. But were it otherwise, the present case would not be relieved, for it appears that the Clerk was not even directed to advertise for bids by the Committee on Streets, Wharves, Grades, and Public Squares, as provided by the general order in question.

Meuser v. Risdon

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