Devine v. Freedom Newspapers, Inc.

BARNARD, P. J. This is an action to have a contract declared null and void, and to restrain the respondent city and its officers from paying out any city funds in connection therewith. General demurrers to the complaint were sustained without leave to amend, and the plaintiff has appealed from the judgment which followed.

The admitted facts are as follows. The appellant is a taxpayer in Santa Ana, a city of the fifth class with its fiscal year beginning and ending July 1. The Independent is a weekly newspaper published in Santa Ana. The Register, owned by [666]the defendant corporation, is a daily newspaper published in Santa Ana. It has a paid circulation which covers more than 94 per cent of all the homes in that city.

On June 1 and June 8, 1951, the city published in the Independent a notice calling for bids for publishing legal notices for the fiscal year July 1, 1951 to July 1, 1952, as required by section 37907 of the Government Code. The Independent submitted a bid in accordance with this notice. The Register submitted a lower bid. Below the signature on that bid the following language appears:

“P.S. In event of acute newsprint shortage or other conditions beyond the control of the Register that may necessitate the limiting of the size of the Register or the rationing of advertising, the publisher reserves the right to cancel this bid, without penalty, on 60 days notice in writing.”

The city trustees, by unanimous vote, accepted the bid of the Register and awarded the contract to it.

The complaint contains no allegations of fraud or dishonesty. It alleges that by accepting the bid of the Register the city council purported to contract with it for the printing of legal publications in its Saturday issue for the fiscal year commencing July 1, 1951, and ending June 30, 1952; that this purported contract is illegal and void since it was not entered into in the manner prescribed by law; that the city officials had no power or authority to accept this bid; and that this contract is null and void in that it does not comply with the requirement of the statute that such a contract must cover a full year.

The appellant contends that section 37907 of the Government Code requires that such a contract for the printing of legal notices must be one for a full year; that this contract was not one for a year since the bidder reserved the right to cancel it on 60 days’ notice; that it must be deemed to be a contract for 60 days only since it was not enforceable for any longer period; that it was not responsive to the call for bids and materially deviated therefrom; and that it follows that the contract does not comply with the statute and is null and void.