The morning call., 1890-12-10
PUBLIC PRINTING.
Judge Hunt Dissolves the Tenn.
pOrary Injunction.
he Holds That the Awarding of Contracts Is a
Ministerial act and That tbs Proposed
Job Is Illegal.

Yesterday Judge Hunt rendered his prom
ised decision in the matter of the injunction
restraining the Board of Supervisors from
entering into contract with the Stock Re-
port for the public printing. The decision,
which dissolved the temporary Injunction
till then in force, is given in full:
The COurt-The complaint herein alleges that
the plaintiff Is resident and Taxpayer Of this
city and county, and that the defendants consti-
tute the Board of supervisors thereof.
That on November 10. 1890. the defendants.
as such board, advertised for specifications or
proposals for doing public printing! stating
therein that sealed proposals would be received
by the board on the following Monday evening.
for the public prD ting for the city and county OF
San francisco for Two years commencing jan
uary 1, 1891. In these Drol 0sals the term "pub-
lie printing" is defined TO be The publishing "of
the resolutions, orders and authorizations OF the
Board OF Supervisors, all notices aud advertise
ments required TO be published by each Of the
municipal officers and departments under the
supervision and control OF the Board OF Super
visors, and all notices and resolutions apper.
tanning 10 street. work" Bidders were required
to bid price for one. three and tive insertions
per thousand ems, ''for which the work Of pub
fishing the resolutions, orders and authorize
lions OF the Board OF Supervisors shall be ner-
formed. Bidders Will estimate with the under
standing that the party TO whom the contract is
awarded in consideration thereof shall have the
right TO charge aud collect their usual rates from
the parties Interested or affected for all resOlu-
opening and closing streets. publishing official
notices, changing established grades or granting
franchises"
THE BIDS AND BIDDERS.
That. pursuant to said proposals, four journals
of this city, VIZ: the Evening Post, the Daily
Report, the San Francisco Advertiser and the
that portion OF The public printing for which
bids were asked, free of charge, In consideration
OF the privilege OF charging their usual rates for
all other public printing" 1t Is then alleged that
the usual rates Of the journal of Commerce are
less than those OF the Daily Report, and that
there exists fraudulent conspiracy on the part
OF The defendants, constituting a majority OF the
board 10 award said contract 10 the pr0Drietors
of tbs Daily Report, upon specifications which
are illegal aud fraudulent, and that il any con
tract Is SO awarded the Journal selected, while
performing without charge a portion OF The pub
lie printing. Is thereby enabled TO charge its own
prices Tor tn remainder.
IL is further alleged that on November 17th
said bids were opened In open session Of lie
board and the contract for the public printing
was awarded 10 the Daily Report by a resolution
OF award adopted and passed to print, and which
was 10 have CONS up for final passage on the
evening of the day upon which the Injunction
herein was served ppUu the board. This resOlu-
tion awarded said contract to lie Daily Report
as tile lowest bidder In conformity with the
specifications, ana provided that the SAID journal
shall do ali the public printing referred 10 at
the following prices. ameiy: For tho work OF
publishing the resolutions. orders aud authorize
tons OF tile Bord Of SUPERVISORS no charge"
The award then provides that In consideration OF
The performance OF The above work The Daily Re.
port shall have he right 10 charge and collect Tor
OTHER printing from the parties Interested their
usual rates.;
The award further provides that the Daily Re-
port shall be the only newspaper iii which all
resolutions and notices OF street work shall be
published as required by law during lifetime Of
said contract"
An injunction restraining the Board OF Super
vlsors from further executing or carrying out
said proposed contract was issued, and II is now
moved 10 dissolve the same upon various
grounds, which Will be considered i'll the order
presented:
DEFENDANTS CONVENTIONS.
1. The defendants claim that The court has no
power TO restrain the action OF The Board Of Su-
perVlsors In The premises, upon the ground that
SAID action is legislative in us character
The action In question, however, is ministerial
and not legislative in Its nature. The charter OF
the city requires the board TO award all contracts
for public printing to The loves bidder, and the
board Is vested with no discretion Whatever in
the premises. Cpon the coming In Of said bids
their only duty is TO ascertain who Is the lowest
bidder, and 10 award the contract accordingly
There is nothing OF legislative or iaw-nakiug
Character III such an act. III authority were
necessary In support OF this position IL will be
found In he case OF Townsend vs. Copeland, %
Cal, 6l5, where our Supreme Court declares
thal Board OF Supervisors, In deteI nlning to
whom contract for public printing shall be-
awarded, exercises power which Is purely min
isierihl: II. IN response TO proper proposals for
bids Tor public printing, several competing jour
nalS should bid, and each should offer 10 per-
fofm the Work FOR nothing, the beard may deter
mine 10 which Of said competitors il Will award
the wo;k, ana the court could not In such case
cont oil lis action III thlsrespect If the proceed
ings herein W. re In all respects regular the cir.
cumsiancc that tie board selected the Daily Re-
port 10 do the public printing Is no ground Tor
in tetfeing with its action.
2. Ii Is claimed that plainIiff herein as tax
payer cannot he injured III any event, because.
SO far as the expense of publication of notices
and resolutions relating TO street work is
ceIned, such expense is borne by the parties as
sessed and is a local burden aud moi charge
upon lie public treasury. Generally speaking.
this Is tue. But whenever street work Is lone
in fRNF Fair nall. anI.A
hospital lots or public squares, the expense
thereof TO that extent is borne by the city, and
as the item o! printing constitutes portion of
SUCH expense, my illegal expenditure In this
particular would be public charge and paid out
OF the County Treasury.
PERTINENT QUESTIONS.
3. II Is next claimed that the proposals aud
Specifications In question embrace all Classes and
Kinds OF public printing, and that said proposals
and Specifications are therefore valid.
The pro osal in question excluded from the
classification Of public printing" all official
tees and resolutions comforting special priv
ieges. granting franchises opening aud closing
streets or changing established grades.
Assuming that the printing of the resolutions
last referred to is public printing" II seems TO
me clear thai The publication of ''oficiai no
tices'' is also public printing in the estimation OF
The law, which should be awarded TO the lowest
bidder, and that the proposals or specifications
In question, so lar as they attempt &c define what
Is not public printing are In This particular
defective and miSlradiDg.
Furthermore, II is clear that the orders and
resolutions for the printing OF which the board
empowered the successful bidder to charge its
own rates Is eiiher public printing il is not.
II IL IS not public printing, what right has the
board 10 include IL In tie proposals? II II Is
b.bile printing, what right has the board 10
classify II as private printing, or what power has
II 10 award II to bidders who do not bid or name
The specific sum or amount for which such bid
ders propose 10 do the work. II, In response TO
proper proposals, offers are made to furnish
public supplies or do ths public printing at the
usual rates" OF The bidder such offers are no
bids all If wOutd be imn0sS lhin n ava h
contract upon such an offer, to determine who
was The lowest bidder, In the event OF competi-
tion, II several bids OF a similar character were
received.
Again, II would seem as II resolutions relating
TO the opening or grading OF streets were resou-
lions pertaining TO street work." And yet,
Willie in the former part Of The proposals
notices and resolutions pertaining TO street
work " are denomnated public printing" for
which bids are invited, In The latter part OF the
proposals resolutions and ofaers for opening
and grading streets are treated as private print
Ing, for which no bids are asked, and the sue
cessful party Is permitted TO charge his own
rate.
DEFECTIVE SPECIFICATIONS.
Again, the proposals or specifications should
The Legislature OF this Stale. by an act adopted
In March. 1868, entitled IAN Act Concerning
the Sherlf's Advertising OF tile City ana County
OF San Francisco" expressly decla ed that the
Supervisors shall include such advertising In
their advertisement for pi Oposals TO do the pu -
lie printing. and the award Is to be made to the
ing and the Sheriff's advertising. No mention
whatever In The proposals in question IL made of
the Sherif's advertising. For these reasons
consider the proposals defective, uncertain and
Invalid.
4. 1t Is claimed that even If the proposed
award Is made by The board. then that mas
much AS che successful bidder offered TO make
no charge for the public printing, the burden of
taxation would not be Increased: and hence, the
plaintiff, as a taxpayer, cauDot complain.
Without stopping TO consider whether con-
tract 10 perform public work gra,uitously Is
obligatory upon the contractor, or whether It
rests upon any consideration sufficient TO legally
support 1t; or whether a bond executed TO
secure the performance Of such gratutous under.
taking, can ever be binding upon The sureties
thereon In The event OF a breach thereof 1t re-
mains TO consider whether II tho contract pro-
posed to be awarded to the Daily Report, Is, In
fact awarded, would that journal be entitled TO
claim that all resolutions and notices relative TO
street work must be advertised IN its columns.
In my opinion It is clear that no such claim can
be made; and this, notwithstanding the fact
that the proposed contract declares thar all such
advertisements must be published In the columns
OF said journal.
The former Street Assessment law required
that resolutions OF intention 10 perform street
work should be published In the paper doing tho