Henry Cowell Lime & Cement Co. v. Williams

189 P. 838, 182 Cal. 691, 1920 Cal. LEXIS 562

• Court: California Supreme Court
• Decided: April 19, 1920
• Docket: Sac. No. 2857.
• Status: Published

Opinion

WILBUR, J.

—This is an appeal from a judgment denying an application for a writ of mandate to require the respondent auditor to draw a warrant upon a claim for cement furnished by the petitioner to the county of Sacramento, which claim has been duly approved by the board of supervisors, The cement was purchased by the purchasing agent of the county without advertising for bids, for the purpose of constructing certain highways in the county of Sacramento. The improvement of these highways was provided for by a county bond issue of one million seven hundred and fifty thousand dollars at an election held under the provisions of the Statutes of 1907, page 666, authorizing the calling of such election. The bonds were sold and the proceeds thereof paid into the county treasury. The petitioner furnished the cement .upon the orders of the purchasing agent.of the county, who made such purchase in pursuance of a requisition by the highway commission upon the supervisors and by them authorize^. The purchase was made' upon the written request from the purchasing agent to the petitioner to furnish bids. The statute authorizing the performance of the work provided that “As soon as the funds raised by the sale of said bonds are in the treasury the commission shall proceed to prepare detailed specifications, plans and profiles for the work to be done, or for such parts of it as they deem it advisable to have done separately, . . . and they shall then present said specifications, plans and profiles, with their recommendations in regard to the doing of the work and letting of contracts to the board of supervisors, who shall either adopt or reject the same" as presented.”. (Stats. 1907, p. 668, sec. 9.) Respondent claims that no such plans and profiles, as provided by the statute, were prepared or adopted by the board of supervisors, and that, therefore, the county was without jurisdiction to order the cement in question. The proof shows that the specifications for the cement" required were prepared and adopted by the board of supervisors, and that the specifications for the performance of the work were also prepared and adopted. The general nature and character of the improvement were set forth in the report made by the highway commission to the board of supervisors before the election upon the bond issue, and contemplated the improvement of the highways by a concrete base five or more inches in thickness and an asphalt surface. It having been determined by the board of supervisors that the county would furnish the cement to the contractor, no plans or profiles were necessary for the purpose of determining the kind or quality of cement to be used in the concrete base which was provided in the original plan of the highway commission and adopted by the voters at the election. ■ The first question is whether or not the adoption of plans and profiles before entering into any contract for the furnishing of materials was a jurisdictional prerequisite, and if not whether or not the county was authorized by law to purchase cement for the purposes stated and in the manner in which it was undertaken to be done. In proceedings under the Vrooman Act [Stats. 1885, p. 147], and similar statutes for the improvement of streets and assessing the cost thereof upon the property benefited thereby it is necessary to strictly conform to the requirements of the statute in adopting the plans and specifications, and in the event of a failure so to do the contract for the performance of the work and assessments made or bonds issued for the payment thereof are void. (Fay v. Reed, 128 Cal. 357, [60 Pac. 927]; Bay Rock Co. v. Bell, 133 Cal. 150, [65 Pac. 299]; McDonnell v. Gillon, 134 Cal. 329, [66 Pac. 314] ; Williamson v. Joyce, 137 Cal. 107, [69 Pac. 854].) [1] But the question involved in this ease is entirely different. The money is already in the county treasury. So far as the persons who performed the work or furnished materials for the improvement in question are concerned it merely represents a fund properly applicable to the expenses of improving the highways. The right of the petitioner to a warrant for the claim for cement, approved by the board of supervisors, does not depend upon the validity of the proceedings leading up to the improvement of the highway, but depends upon the question of whether or not the petitioner’s contract with the county, made through the purchasing agent, was a valid contract. This question turns upon the provisions of the statutes for the improvement of these highways, construed in connection with the provisions of the Political Code regulating the powers and duties of the various county officers. The first question is, whether or not the statute authorizes the board of supervisors to segregate the various portions of the work into separate contracts and to treat -the furnishing of cement as a separate and distinct contract authorizing the purchase of such cement as an independent portion of the entire scheme of improvement. The statute reads: “If the board adopt the same they shall thereupon advertise for bids for doing the said work, or any part thereof which the highicay commission recommend should he done separately, in accordance with said plans, profiles, and specifications, by publishing a notice,” etc. If the furnishing of material can be treated as a part of the work within the meaning of this clause, then the general plan of improvement, coupled with the specifications for cement, would be a sufficient foundation for the advertising for bids for such cement. It is next provided that “Every contract for doing any part of said work shall be let, after advertisement as above provided, to the lowest responsible bidder,” etc. It is conceded that the contract for the cement furnished by the petitioner was not let after advertisement to the lowest responsible bidder. The statute makes provision for such purchase as follows: “Provided however, that the board may authorize the highway commission to make contracts, without advertisement, for any part of said work the cost of which does not exceed one thousand dollars.” In this case the requisition was for two thousand barrels of cement, the purchase price of which was over two dollars per barrel. The statute also authorizes the rejection of all bids, and the performance of the work by the highway commission upon the authority of the board of supervisors, as follows: “And provided further, that the board may reject all bids and may thereupon readvertise for bids for doing any part or the whole of said work, or in their discretion authorize the highway commission to purchase the necessary material, purchase or hire tools and appliances, and hire laborers, and to do the work or any part thereof without letting any contract therefor. In such case all contracts for materials, tools or appliances, amounting to more than one thousand dollars in value shall be let b3r the commission to the lowest responsible bidder, after advertisement as above provided.” The supervisors in the present instance decided that the county should purchase the cement and furnish the same to the contractor, thus commingling the two methods of procedure, one by contract and the other without contract. [2] But in either case, so far as material is concerned, it was essential that the purchase should be after advertisement and from the lowest responsible bidder. It is conceded that this was not done. For the purpose of this decision we may assume that the supervisors had a right to so segregate the highway work as to make the furnishing of cement a separate and distinct contract. This view seems to be sustained by our decision in Perry v. Los Angeles, 157 Cal. 146, 150, [106 Pac. 410]. Petitioner, however, claims that the statute of 1907 requiring the purchase of supplies from the lowest responsible bidder after advertisement is modified by the provisions of the statute authorizing the employment of a purchasing agent for the county and fixing his duties, added to section 4041 of the Political Code, by amendment of 1913 (Stats. 1913, p. 667, sec. 4041, subds. 21, 22), which reads as follows:

“21. To employ a purchasing agent, whose duties shall be to purchase for the county and the offices thereof all stationery, clothing, bedding, groceries, provisions, drugs, medicines, furnish machinery, implements, and all other personal property or supplies, the same to be purchased only upon a proper requisition therefor; also employ for said purchasing agent such assistants as may be necessary for him to properly fulfill his duty.

“22. Whenever a board of supervisors shall employ a purchasing agent as herein provided for it shall not be necessary for them to advertise for bids for furnishing county supplies as provided in section 4048 of the Political Code, with the exception of advertising.”

Previous to the adoption of this amendment the method of securing supplies for the county was by annual advertisement as required by the provisions of section 4048 of the Political Code, which was substantially the same as the County Government Act of 1897 (Stats. 1897, p. 464, sec. 25, subd. 21). This scheme called for a general advertisement for all sorts of supplies furnished to the county, the bids so received to be a basis of subsequent purchases to be made during the year as needed by the county officials. This section, and a similar statute preceding the same, have been construed in a number of instances. (Swasey v. County of Shasta, 141 Cal. 392, 395, [74 Pac. 1031]; County of Riverside v. Yawman & Erbe Mfg. Co., 3 Cal. App. 691, [86 Pac. 900]; People v. Nellis, 14 Cal. App. 250, [111 Pac. 631]; Sarver v. County of Los Angeles, 156 Cal. 187, [103 Pac. 917]. See, also, Yale v. Boyle, 179 Cal. 180, [175 Pac. 787].) Subdivision 22, supra, simply authorizes the purchasing agent to purchase “stationery, clothing, bedding, groceries, provisions, drugs, medicines and all other supplies,” mentioned in section 4048, of the Political Code, without the annual advertisement therefor, as therein provided. The clause “and all other supplies,” if not limited by the other provisions of the section in which it is found, would be broad enough to cover cement furnished to the highway commission. [3] But under the cases last cited the phrase “and all other supplies” is limited by the context of section 4048 to ordinary county supplies, and would not apply to the furnishing of a large amount of cement for the carrying out of a specially authorized highway improvement. In accordance with this view it has been held that it would not apply to furnishings for a county courthouse (County of Riverside v. Yawman & Erbe Mfg. Co., supra; People v. Nellis, supra), or to furnishings or jail fixtures (Sarver v. County of Los Angeles, supra), or to the erection of a fence, or, under similar provisions in the charter of San Francisco, to the purchase of automobile buses to be used as a public utility. The provisions of subdivision 21, supra, are broader than the original section 4048, in that it includes the furnishing of machinery, implements and all other “personal property.” There is no express provision contained in subdivisions 21 and 22 with relation to the method of furnishing machinery, implements and other personal property except the provision that it shall be done upon a proper requisition therefor. Nothing in this method of purchase is inconsistent with the plan of advertising for such property and letting a contract therefor to the lowest bidder. It follows that the purchasing agent, under the new" scheme of purchasing contemplated by' subdivisions 21 and 22 of section 4041 of the Political Code, must advertise for cement in the manner provided by the act authorizing the purchase (Stats. 1907, p. 668, sec. 9, above quoted), though he need not do this annually or for the supplies, etc., covered by section 4048 of the Political Code. Subdivision 22 does not purport to authorize the purchasing agent to purchase personal property without advertisement where such property is not covered by section 4048, and where such an advertisement is required by the statute authorizing the purchase. As we held in Vale v. Boyle, supra, the contracts for the purchase of .personal property are proper without advertisement, notwithstanding a general provision requiring advertisement for supplies similar in terms to section 4048 of the Political Code. There is no method pointed out for the purchase of personal property in the amendment of 1913 to section 4041 of the Political Code, adding subdivisions 21 and 22. There is therefore no conflict between the statute of 1907 requiring the letting of contracts after advertisement to the lowest responsible bidder, and the later statute which is silent upon that subject. The purchasing agent was not authorized to purchase the cement in question except from the lowest [4] responsible bidder after advertisement as required by section 9, supra. The contract between the petitioner and the purchasing agent acting for the county having been made in violation of the express requirement of the statute is void and the petitioner cannot recover thereon. (Walton v. McPhetridge, 120 Cal. 440, [52 Pac. 731] ; Reams v. Cooley, 171 Cal. 150, [Ann. Cas. 1917A, 1260, 152 Pac. 293].). .

The judgment is affirmed.

Olney, J., Shaw, J., Lennon, rJ\, Kerrigan, J., pro tern., Lawlor, J., and Angellotti, C. J., concurred.