Killeen v. City of San Bruno

Opinion

BROWN (H. C.), J. Plaintiff, as a representative of a class, filed this taxpayer’s suit against defendants, City of San Bruno, city council members, the city’s finance director and the city engineer (city) to enjoin the use of city employees to perform work, in violation of section 37902 of the Government Code, which provides: “When the expenditure [481]required for a public project exceeds three thousand five hundred dollars ($3,500), it shall be contracted for and let to the lowest responsible bidder after notice.” The lower court, after a hearing, denied the taxpayer’s motion for a preliminary injunction, and this appeal ensued.

As the appeal is from an order denying a preliminary injunction, the facts are derived from the pleadings and supporting memoranda. During the summer of 1974, San Bruno, a general law city, began replacing at least 70 service lines connecting certain businesses to a new water main, at a total cost in excess of $3,500. To perform this work, the city chose to use only its own employees; no contracts were let for any of the work done. The parties here stipulated that these water main connections were a “public project” within the meaning of that term in section 37902 of the Government Code.1

In Matthews v. Town of Livermore (1909) 156 Cal. 294 [104 P. 303], the court was confronted with similar facts, as the plaintiff sought to enjoin the use of city employees to construct a system of sewers for the town. In construing section 862 of the act of 1883 (Stats. 1883, ch. 49, p. 93), authorizing a city to construct a sewer, and section 874 of the same act, the predecessor of the instant statute (Stats. 1883, ch. 49, p. 274, codified in Gov. Code, §§ 37901-37902), requiring competitive bidding, the court stated at page 296: “. . . it cannot be denied that the general power to construct sewers given by section 862 is limited and modified, with regard to sewers costing more than one hundred dollars, by the specific provisions of section 874 requiring public works of that magnitude to be done by contractors upon contract let to them after due advertisement and an opportunity for competing bids. Unless there is some other or later statute enlarging their powers, or modifying these provisions, the board of trustees were attempting to exceed their powers and their action should have been enjoined....” (Italics added.)

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