Oakland Paving Co. v. Barstow

McFarland, J. This is an action brought by a contractor to enforce a lien for street work done in the city [47]of Oakland. Judgment went for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.

The contract was entered into between the plaintiff and the city marshal in December, 1879. A time for the completion of the work was mentioned in the contract. This time was extended (or attempted to be extended) twice during the year 1880 by the city council and marshal. The work was completed within the time as extended, but not within the time originally mentioned in the contract. Appellants’ main contentions are: 1. That after January 1, 1880, when the new constitution went into full effect, there was no power in the city, or any of its officers, to extend the time for the completion of street work; 2. That under the city charter itself neither the city council nor marshal, nor both, had power to grant such extension; and 3. That no such extension was ever actually given.

1. As the contract was made before January, 1880, it was not impaired or affected by the new constitution. The granting of the extension of time was not a novation or new contract; it was merely a pursuance of the original contract under rights existing by virtue of the law under which it was made. The extensions were made before the original time, or the time given in the first extension, had elapsed. The case of German Savings Bank v. County of Franklin, 128 U. S. 526, cited by appellants, differs in many respects .from the case at bar.

2. The contention that the charter gives no power to extend the time for the completion of a contract rests (in addition to the claim that Conlin v. Seamen, 22 Cal. 547, and Houston v. McKenna, 22 Cal. 551, were wrongly decided) on the attempted application of the maxim, Expressio unius, etc., to the latter clause of the first sen- " tence of section 6 of the Oakland street law. (Stats. of 1863-64, p. 333.) Said clause is as follows: “Said mar[48]shal shall fix the time for the commencement of the work under all contracts entered into by him, which work shall be prosecuted with due diligence from day to day thereafter to completion, and may extend the time so fixed, from time to time, under the direction of the city council.” It is argued that the words “so fixed” refer only to “commencement”; and that, as the power to extend the time for the commencement of the work is expressed, therefore the power to extend its completion must be held to be excluded. But, in the first place, it is not entirely clear that the construction contended for is the correct one. It would, no doubt, be the strict grammatical construction; but the language undoubtedly leaves the impression that the law-maker, when using it, had the intent to do something more than to merely give power to extend the commencement of the work. If that had been his sole purpose, the words concerning the extension of time would naturally have immediately followed those about the commencement of the work; whereas they are placed after the clause requiring the prosecution of the work with due diligence from day to day thereafter to completion.