Summary
■ Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
This was an action to recover a street assessment for laying down the Bicolson pavement in Powell street, in the City and County of San Francisco.
It appeared from the record on appeal that the proceedings taken by the Board of Supervisors, preliminary and subsequent to advertising for proposals for bids, which proposals were to put down said Nicolson pavement, were in general pursuance of the provisions of the legislative Acts of 1862 and 1863, (Stats. 1862, p. 391, and 1863, p. 525,) and were not predicated on any petition by the owners (or their agents) of a majority of the frontage on said street, for the paving of the same with the Nicolson pavement.
The contract for making said improvement was awarded to James J. Robbins, who alone put in a bid therefor, at the rate of thirty-eight cents per square foot. The plaintiff received an assignment of said contract from said Robbins, and made said street improvement. At the time said proceedings of the Board of Supervisors were instituted, and thereafter until this action was brought, the right to lay said Eieolson pavement was secured by letters patent of the United States, and the plaintiff, as the assignee of the patentee, had the sole and exclusive right to lay the same in the City and County of San Francisco.
The trial was by the Court, without a jury, and upon findings of fact filed by the Court, judgment passed for the plaintiff. The defendant moved for a new trial, on the grounds, first, that the evidence was insufficient to justify the findings and decision of the Court, and second, that the decision is against law. The motion for a new trial was denied, and the defendant appealed from the judgment and from the order denying a new trial.
Syllabus
Street Improvements in San Francisco—Power of Board of Supervisors.— The Board of Supervisors of the City and County of San Francisco, in respect to street improvements, have whatever power is conferred by the statutes on that subject, and no other. The power which they possess must be exercised in the mode prescribed by said statutes, and in no other. “ The mode in such cases constitutes the measure of the power.”
Idem—Policy of the Statutes on the Subject.—The evident policy of the general law upon the subject of street improvements in San Francisco, as passed in 1862 and amended in 1863, (Stats. 1862, p. 391; 1863, p. 525,) is to secure and protect the persons who are made to pa.y the cost of the improvement from official mismanagement and wanton or reckless exercise of power, by advising them of what is proposed to be done, by enabling them to do the work themselves, if they so elect, and especially by securing the performance of the work by responsible persons and upon the lowest terms. This policy cannot be defeated by the Board of Supervisors, by setting aside the measures which have been provided for its enforcement.
Idem.—The Board of Supervisors has no power, in making street improvements, so far as conferred by said statutes of 1862 and 1863, to do any kind of work which, for any cause, cannot be let or contracted for in the mode prescribed in said statutes, or which the owners of the frontage are legally prohibited from performing.
Idem—Nicolson Pavement.—Where said Board, while assuming to act under said statutes of 1862 and 1863, advertised for proposals to put down on a street in said city the hficolson pavement, which had been patented under the laws of the United States, and awarded a contract therefor to B., who owned the exclusive right to put down said pavement in said city, and who alone put in a bid for said contract: Held, that the Board exceeded its authority, and the contract was void.
Idem—Power op the Board op Supervisors to Contract por Nicolson Pavement.—Whatever power said Board of Supervisors has in relation to the Nicolson pavement is derived from the statute relating thereto, (Stats. 1865-6, p. 720,) under which the power can be exercised only upon the petition therefor of a majority of the owners, or their agents, in frontage, and upon the condition that the pavement shall not cost to exceed twenty-eight cents in coin per square foot. Where the Board advertised for proposals and awarded a contract for the construction of said pavement in said city, without having received said petition: Held, that the contract was void.
The principal question involved in this case, and the only question which we propose to consider, relates to the power of the Board of Supervisors of the City and County of San Francisco to cause the streets of the City of San Francisco to be paved with what is known as the Nicolson pavement. We shall consider, first, the power of the Board in relation to the fiiicolson pavement, under the general law upon the subject of street improvements, as passed in 1862, and amended in 1863, (Stats. 1862, p. 391; 1863, p. 525;) and second, the power of the Board in relation to the improvement of streets, as affected by the statute of 1866 in relation to the pavement of streets with the Nicolson pavement, (Stats. 1865-6, p. 720,) so far as the exigencies of the present case require.
We repeat what we have so often had occasion to say, that in the matter of street improvements the Board of Supervisors have whatever power the statutes upon that subject have conferred upon them, and no other; and that the power which they possess must be exercised in the mode prescribed by the statute, and in no other; for, as was well said by Mr. Chief Justice Field, in Zottman’s Case, 20 Cal. 102, “the mode in such eases constitutes the measure of the power.” With this principle kept steadily in view, little difficulty ivill be found, we apprehend, in solving the questions presented by the record in this case.
By the third section of the Act of 1862 the Board is empowered to order the whole or any portion of a street to be “ paved ” or “ repaved.” By the succeeding sections it is provided how and by what proceedings they shall exercise the power so conferred. They may move in the matter of their own volition, (See. 4,) or upon the petition of the owners of more than one half of the frontage (Sec. 5); but in either case they are required to proceed by first publishing a notice for the period of ten days of their intention in the premises. If nothing intervenes to stay further action, they 706 are next required to advertise for sealed' proposals or bids for the contemplated work. (Sec. 6.) The bids being in, they are next required in open session to open, examine, and publicly declare the same, and thereupon award the work to the lowest responsible bidder. They are next required to publish a notice of such award, and to allow the owners of the major part of the frontage to take the contract upon the same terms, if they shall so desire. If the owners do not elect to take the contract within the specified time, it is then to be given to the bidder to whom it was awarded.
From this mode, as already stated, the Board has no power to depart—it is their chart and compass—it is “the measure of their power.” The policy of the statute is apparent—it is to secure and protect the persons who are made to pay the cost of improvement from official mismanagement and abuse—from the reckless or wanton exercise of power, by advising them of what is proposed to be done, by enabling them to do the work themselves, if they so elect, and especially by securing the performance of the work by responsible persons, upon the lowest terms. This policy cannot be defeated by setting aside the measures which have been provided for its. enforcement; to do so would be to nullify the will of the Legislature, and brush aside all the safeguards which that body has provided for the protection of the property holders of San Francisco.
If, as already stated, the mode is the measure of the power, it necessarily follows that the Board has no power to do any kind of work which, for any cause, cannot be let or contracted for in the prescribed mode, or which the owners of the frontage are legally prohibited from performing. It is true that the third section, which confers the power to “pave,” does not restrict the Board to any particular kind of pavement, and if the question turned exclusively upon that section, the Board would have the power to contract at its election for any kind in use; but the power to “pave,” so far as the Board is concerned, is the power to contract for a 707 pavement, and the power to contract is limited by the mode in which the contract is to be let, and no contract can, therefore, be made to which that mode cannot be beneficially and in good faith applied.
The case shows that the Eicolson pavement is an" invention which has been patented under the laws of the United States, and that the plaintiff alone owns and holds the right to put it down in the streets of San Francisco.
To advertise for sealed proposals where there can be but one bidder, to open them in open session, to examine and publicly declare them, and thereupon award the work to the lowest responsible bidder, where there is and can be but one, to notify the owners of the frontage, if they so elect, to come forward and perform work which by the paramount law of the land they are prohibited from performing under heavy responsibilities, would be to play as broad a farce as was ever enacted behind the footlights. The law does not permit itself to be thus trifled with, nor allow its ministers to thus substitute pretense for performance.
From what has been said it follows that whatever power the Board has in relation to Kicolson pavement must be considered as coming from the statute of 1866. Under that statute the power can be exercised only upon the petition of a majority of the owners, or their agents, in frontage, and upon the condition that the pavement shall not cost to exceed twenty-eight cents, in coin, per square foot. The case shows that the Board acted without any petition on the part of the property owners, and it therefore follows that their proceedings were also void under the Act of 1866, as well as those of 1862 and 1863.
Judgment and order reversed.
