Nicolson Pavement Co. v. Painter

35 Cal. 699, 1868 Cal. LEXIS 148

• Court: California Supreme Court
• Decided: July 1, 1868
• Status: Published

Opinions

By the Court, Sanderson, J.:

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 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 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.