Santa Cruz Rock Pavement Co. v. Broderick

California Supreme Court Aug 7, 1896 No. S. F. No. 380Published

Before: Harrison

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Holding. A municipal contract for street improvements is invalid if the city fails to invite sealed bids as required by the street improvement act, and the city cannot be estopped from denying liability for such unauthorized contracts.

Issues

Whether a city board of supervisors has the authority to contract for street improvements without inviting sealed proposals or competitive bids.
Whether a city is estopped from denying liability for a contract performed in violation of statutory bidding requirements after authorizing payment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The advertising for bids is made by the act a condition precedent to the exercise of the power to award “ any "contract, and is a limitation upon the mode in which the previous order for the improvement of the street is to be made effective.”

Synopsis

Street Improvement—Construction of Act—Improvement of Accepted Street—Void Contract—Absence of Competition—Liability of City and County—Mandamus.—Where a contract for a street improvement on an accepted street in the city and county of San Francisco, by paving it with bituminous rook, was let under a resolution of the board of supervisors, without inviting proposals for bids, and without any opportunity for the competition, the contract is unauthorized and void under the street improvement act, which applies to any contract for doing any work authorized by the act, irrespective of the character of the street, or of the mode in which the expense is to be paid, and is in excess of the jurisdiction of the board of supervisors, and the city and county is not liable thereunder, and mandamus will not lie to compel the auditor to draw a warrant upon the treasurer for the expense of such improvement.

Id.—Repair of Street—Improvement—Paving and Macadamizing.—A contract for the pavement of an accepted street with bituminous rook on a macadam foundation, the street having never been so improved before, is not a contract for the repair of the street within the meaning of section 25 of the street improvement act, but is a contract for the original improvement of the street, within the general terms of the act.

Id.—Estoppel of City—Authorization for Payment—Limitation of Power of Supervisors—Knowledge of Contractor.—The fact that the board of supervisors of the city and county of San Francisco assumed to authorize the payment of a demand under a void contract for a street improvement, cannot estop the city; but the board, having no authority to make the contract, can have no authority to order its payment; and the contractor in entering into the contract is chargeable with knowledge of limitations upon the power of the board of supervisors.

Harrison, J. The board of supervisors of the city and county of San Francisco passed a resolution July 8, 1895, directing the superintendent of streets to enter into a contract with the appellant to pave Van Ness avenue from Pacific avenue to Jackson street with bituminous rock, at the rate of seven cents per square foot. Under the contract entered into by virtue of said resolution, the appellant completed the work therein named and thereafter presented its demand, duly verified, to be paid out of the street department fund, for the sum of fourteen hundred and forty-seven dollars and ninety-nine cents, and on October 28, 1895, the board of supervisors passed an authorization for the payment of said demand. Upon its presentation to the respondent, who is the auditor of said city and county, that officer refused to indorse his allowance thereon, or in any way to approve or allow the same, whereupon the appellant instituted the present proceeding to compel him to audit and allow said claim. The respondent set up as an answer to the application that in passing the resolution authorizing the contract with the appellant the board of supervisors acted in excess of its jurisdiction and authority, and that the contract itself was invalid for the reason that no proposals or bidding therefor were invited by the board of supervisors, and that the contract was let without any opportunity for competition. It was shown at the hearing in the superior court that the roadway of Van Ness avenue from Pacific avenue to Jackson street was accepted by the board of supervisors February 24, 1880, under the provisions of the act amendatory of the street law passed April 4, 1870. It was admitted on behalf of the petitioner that none of the acts or steps provided for by section 3 or by section 5 of the street improvement act of March 18, 1885, had been taken or done; that no invitations for sealed proposals or bids for doing the work had been given, and that the contract for the work was made solely by virtue of the resolution of July 8, 1895. The court granted a nonsuit, and denied the petitioner’s [630]application for the writ of mandate. Judgment was thereupon entered in favor of the defendant, from which the plaintiff has appealed.

Section 5 of the street improvement act (Stats. 1889, p. 160) declares that, “ Before the awarding of any contract by the city council for doing any work authorized by this act, the city council shall "cause notice with specifications to be posted conspicuously for five days, on or near the council chamber door of said council, inviting sealed proposals or bids for doing the work ordered”; and that the notice of this posting shall be published in the official'paper. The section then provides the mode of making proposals for doing the work, and that they shall be examined and declared by the city council in open session, and that “ the city council may reject any and all proposals or bids should it deem this for the public good, and also the bid of any party who has been delinquent and unfaithful in any former contract with the municipality, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvement to the lowest responsible bidder, at the prices named in his bid, which award shall be approved by the mayor or a three-fourths vote of the city council.” The requirement that the city council shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder is equivalent to a declaration that it shall not accept any other proposal, although it is not required to accept the lowest bid, since it may, in its consideration for the public good, reject all the bids. The requirement that it shall invite sealed proposals before awarding a contract, as well as its obligation to award the contract to the lowest responsible bidder, is, however, universal, and applies to “ any” contract for doing “any” work authorized by the act, irrespective of the character of the street upon which the work is to be done, or of the mode in which the expense is to be paid. Section 20 of the act provides for the acceptance of a street by the

Santa Cruz Rock Pavement Co. v. Broderick

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