Laver v. Ellert

The Court. This is an appeal from the judgment entered after demurrer sustained..

It appears from the complaint that the board of new city hall commissioners had entered into a contract with the firm of O'Connell & Lewis for the erection and construction of a dome upon the new city hall in the city and county of San Francisco, in place of a square clock tower contemplated by the original plans. It was averred that the dome, if constructed, would be wholly unlike, in external appearance, the tower which was to be built according to the adopted plans; that it would cost more, and " would be greatly out of harmony with the other parts of said building already completed, and materially detract from its architectural beauty.'' A perpetual injunction was sought against the defendants to restrain them from proceeding further under the contract, and a judgment was asked decreeing the contract to be null and void. A demurrer was sustained to the complaint upon the ground that it failed to state a cause of action.

The question presented involves the power of the board of new city hall commissioners to make any deviations in the construction of the building from the plans adopted by the commissioners in 1871, under the provisions of the act of 1870. (Stats. 1869-70, p. 738.)

This question, however, has ceased to be of any public importance whatever, and, indeed, of very little concern to the plaintiff himself, by reason of the ratifying act of the last legislature, which, it is conceded, validates the contract, even if, in the first instance, it were improperly entered into by the commissioners. (Stats. 1895, p. 165.)

Nevertheless, we are of opinion that the court properly sustained the demurrer. The act of the legislature creating the new city hall commissioners (Stats. 1870, p. 738) provided that the commissioners should “ adopt [223]■such, plans for the erection of said city hall as in their judgment best calculated to serve the purposes of said •city and county, having in view the necessity of providing a permanent building which will furnish sufficient and suitable rooms to .accommodate the different courts ■and boards of city and county officers, hall of records, and also offices for the various officers of said city (p,nd county.” The object of the act was to secure the erection of a permanent and suitable building for the purposes named, and the duty enjoined upon the board of adopting plans was to further this object. Nowhere, by the act, was the original board prohibited from changing or modifying the plans, when once adopted, and for the proper performance of the duty imposed upon them it was necessary that some discretion should be left to them in the matter. They should have the power to correct mistakes in plans once adopted. They should have the power to vary an adopted plan, if further investigation satisfied them that the execution of it would not achieve the end in view. Nothing in this act can fairly be said to prohibit the commissioners from changing or modifying plans once adopted, if in the bona fide •exercise of their judgment they believed the changes or alterations would better meet the objects of the law.