The morning call., 1890-12-10

requirement. On The contrary II authorizes the
Street Superintendent 10 publish notices OF
and declares that all resolutions and orders re-
lafing 10 street work may BE- published 10 any
daily newspaper the said council may select.
PUBLIC PRINTING DEFINED.
In view Of this statute, If the defendants here
IN were to attempt to designate any particular
newspaper In which all notices OF ADVERTISE
ments OF this character shall be hereafter pup.
Ilshed, such resolution would not be binding
upon their successors; and would moi deprive
them OF the opportunity which the law confers
@ el O. sa be Ias an View CT Inc
amended provision Of The Street Assessment
law. any contract designed to accomplish sucn
by the learned counsel for the Daily Report,
who, In brief, says, There Is nothing in the act
Oh 1885, commonly called the Vro0man Act,
which restricts the Board Of Supervisors to pub
fishing any notices concerning street work In
what Is called the official paper. On tile con-
trafy Tue board has, In every case, discretion 10
publish Its notices of street work In any paper II
chooses TO designate"
Public printing" We may say, is printing
Gallon OF ordinances or local statutes relating TO
mlsdemeanors and the punishment thereoi,
license, sanitary or police regulations, and ail
official notices and the like. Such printing must
De awarded TO and published IN the columns OF
the journal making the lowest bid therefor. But
the printing required by tie street assessment
law, The expense whereof is TO be borne by the
lot-holder, is not, In my opinion public printing
within the meaning OF Section ca of the Consoi-
exceptional cases where such expense is IN.
CURED by the city for street. assessment work
done la front OF its own property. II is there.
lore apparent that so FAR as the publication OF
street-assessmeDt work Is concerned the pro-
posed contract is imperative and void.
D. IL Is next Claimed that the proposed con-
tract Is not Illegal or ultra wires. That the pro-
posed action of the board In awarding The con-
tract III question is Illegal is evidenced by the
TACT that the contract awarded is directly con-
trary, not only TO the specifications and propo-
sails OF the board as advertised, but TO the bid oil
the successful Journal the Daily Report. The
speeiheatlons expressly define as public print.
Ing" The resolutions and orders Of The Board OF
SUPERVISORS and all notices and resolutions ap-
pertaining 10 street work"
A TAINTED CONTRACT.
The bid OF the Daily Report conformed to those
specifications, because The proposed award OF
the defendant expressly so declares. IL there
fore appears that this journal agreed to publish,
without CHARGE among other matters, all
notices aud resolutions PERTAINING 10 street
work" Notwithstanding this gratuitons offer,
have not only departed from their own specfca-
tons, but also the bid OF the successful bidder,
and have authorized the latter 10 charge for
printing which 1t had offered to 90 without
charge. The proposed award declares that the
Daily Report shall have the right 10 collect its
usual rates for resolutions, comforting special
privileges, etc., and for " all resolutions and
tees Of street work" 1t thus appears that in
their specifications the board, for the purposes
OF the bid, expressly defined "public print
Ing" for which bids are invited, the publication
OF notices aud resolutions relating 10 street
work, and this printing the Daily Report offered
to do without charge. In their award, however,
The board has interpolaIed clause taking such
printing out OF the category OF public printing.
and authorized tile bidder 10 charge therefor It's
usual rates.
Such contract. II awarded TO any of the com
peting bidders, could not be sustained; 1t would
be 10 aerogaton OF law, In violation Of The
boards written specifications, inconsistent with,
and contrary 10 the bid accepted. In fraud of the
tights OF competing bidders VINO had relied upon
The integrity and good fail Of the proposals. and
In restraint OF competition The proposed con-
tract Of the board being thus tainted with ille-
galiIy, can this court, IN the present suit inter.
feie? And This brings me TO the con sldeiati0n OF
the point last presented by The counsel herein,
viz:
"Concedng the proposed contract In question
TO be Illegal and invalid. relief cannot be awarded
al the suit OF taxpayer"
The right OF a citizen taxpayer, by an injunc
ton, TO restrain corporate body from a threat
ened Illegal acl, which, If accomplished, will in
crease the burden Of taxation. OF Illegally divert
the pubic funds. is right which. in many
States. Is favored OF equity. right ably adyo-
called by Judge Dillon IN his work Municipal
Court of the United States In 101 U. S., COL.
See also High on lDjunciions. 1851.
CONCLUSIONS OF THE COURT
The SUPREME Court of this State, however, has
not sustained The right Of the tax payer In this
respect. In Linden VS.. Case. 46 Cal, 173, tax
payer sought TO enjoln the Board OF supervisors
from entering into contracts making public ex-
penditures In violation Of law IL was there
held that II the Super visofs of the county pro-
posed TO create an Illegal Indebtedness, or enter
into an unlawful contract, the X-payer caDno.
enjoin the contamination OF such unlawful act; ;
Tor. as they say, "by no possibility can the tax
payer OF the county be injured. The expenditure
In that event would be no charge upon the plain
tins property"
In Mccoy vs.. Bryant. 53 CAL. 259. a similar
suit was instituted by the taxpayer To enjoin the
Municipal Board OF the City of San Diego from
issuing county bonds In violation OF law and re-
lief was denied and the doctrine of Linden VS..
Case WAS again asserted.
In Merriam VS.. the Supervisors OF Yuba Cuun-
10 prevent by injunction the allowance by The
Board OF Supervisors of Illegal claims against
The county. the same principle was mentioned.
and The action of The court below In refusing The
Injunction was Sustained.
last by the Supreme Court In bank, 1t appeared
whatever thereof, as required by law, undertook
jail purposes and 10 authorize the payment
thereof out OF The public funds. An injunction
was obtained In the court below by The plaintiff,
VINO is a taxpayer, and upon appeal 10 the SUI
preme Court. uuon the authority OF the for going
cases, the Judgment WAS reversed and the iu-
Junction dissolved; the court adding that the
proper remedy III such cases must be asserted
by the county in an action brought to annul the
Illegal contract.
While, therefore, ] am clearly OF opinion that
the proposed contract Is Illegal, for the reasons
previously stated. yet l am constr aimed, under
the foregoing authorities. TO dissolve the injunc-
ti0n, and II Is so ordered.