Santa Cruz Rock Pavement Co. v. Heaton

California Supreme Court Dec 22, 1894 No. No. 15609Published

Before: Vanclief

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Holding. The court held that the provision in section 6 of the Street Improvement Act of 1885, allowing city councils to prescribe general rules for street work by ordinance, is permissive rather than mandatory and is not a condition precedent to the council's jurisdiction to order street improvements.

Issues

Whether the word 'may' in section 6 of the Street Improvement Act of 1885 is mandatory, requiring city councils to adopt general rules by ordinance before ordering street work.
Whether the adoption of plans and specifications for a specific street improvement by resolution, rather than by ordinance, is legally sufficient.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Primarily, and as ordinarily used in a statute, the word “may” does not denote the imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility, or contingency”

“there is nothing in the act indicating an intention to make the adoption of such general rules a condition precedent to jurisdiction of councils to order work to be done.”

“As the plans and specifications were specially adopted for a particular improvement they were properly adopted by resolution.”

Synopsis

Street Improvement—Permissive 'Statute.—Section 6 of the act to provide for work upon streets, approved March 18, 1885, which provided that “the city council may by ordinance prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work under all contracts thereafter made,” is permissive, and not mandatory upon the city council, and the prescribing of general rules is not a condition precedent to the jurisdiction of the council to order a street improvement where both the order and the contract for doing particular work sufficiently specifies the material to be used, and the mode of doing the work.

Id.—Statutory Construction—Use of Word “may.”—The word “may” in a statute does not primarily and ordinarily denote the imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility, and contingency, and should never be interpreted as mandatory, except by compulsion of the context, showing that the legislature must have used it in that sense.

Id.—Adoption of Plans and Specifications—Resolution of Council.— The plans and specifications for a street improvement may be adopted by resolution of the council, signed by the president of the council, and do not require an ordinance signed by the mayor.

Vanclief, C. Action to enforce the lien of an assessment of four hundred and thirteen dollars on defendants’ lot for work done by plaintiff on Broadway, in the city of Oakland, under contract with the superintendent of streets.

The cause was submitted to the trial court upon an agreed statement of facts, whereupon judgment was rendered in favor of the plaintiff, from which defendants appeal on the judgment-roll, and contend here that the stipulated findings of fact do not support the judgment.

The street work for which the assessment was levied [164]upon defendants’ lot was done under “ An act to provide for work upon streets,” etc., approved March 18, •1885 (Stats. 1885, p. 147), in section 3 of which it' is provided, among other things, that “ Before passing any resolution for the construction of said improvements, plans and specifications, and careful estimates of the costs and expenses thereof, shall be furnished to said city council, if required by it, by the city engineer of said city, and for the work of constructing sewers specifications shall always be furnished by him.” And in section 6 of the same act it is provided: “The city council may by ordinance prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work under all contracts thereafter made.”

It appears and is admitted that the plans, specifications, and estimates for the work in this case were required by and furnished to the city council by the city engineer in strict accordance with the above extract from section 3, and that such plans and specifications were made a part of the contract for doing the work, though the work did not include the construction of any sewer. But it likewise appears that the city council of Oakland never had by ordinance prescribed any general rule as to the materials to be used or the mode of executing any kind of street work before ordering the work in question to be done, though both the order and the contract for doing the particular work in this case sufficiently and with extraordinary particularity specified the materials to be used, and the mode of doing the work.

Counsel for appellant contend in substance that the above extract from section 6 of the act is mandatory, and that strict obedience to its behest by the city council is a necessary condition precedent to the acquisition of jurisdiction of the council to order any street improvement to be made; and, consequently, that the resolution ordering the work to be done and the assessment in this case are void.

Santa Cruz Rock Pavement Co. v. Heaton

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