The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-01-13

separate resolution, aud there is nothing in he
reason of the thing which prevents such con-
lions.
The question Is however. as to the s;ipuIa-
tlohs or cohiiactuai undertakings that may be
entered into on behalf of Dy the city and
county in such contract.
The power to pledge the faith OF the city and
county for the payment of services rendered in
the publication of resolutions and ofhcal notices
Is a sub0i dinate power Incidental 10 the power
to cause such publication to be made, and as
such OF necessity implied and incidental TO tie
principal express power.
But The power 10 contract for such payment is
the only subordinate power Indispensable or
necessary to cause resolutions to be published.
The power to undertake that particular pa
per shall have the right TO charge and collect its
usual rates for the publication of street notices
and certain classes of resolutions in which midi
viduals are or may be Interested is not indis-
pensable or necessary 10 be exercised of the ex-
press power TO cause the publication.
The same is true With reference to the power
to contract with particular paper that IL shall
have the exclusive light TO publish resolutions
and notices, or shall be and continue to be for a
definite or any term the official paper for the
municipality.
Nor are they imrled in that power. That
power in the score OF its implication can include
only the power To engage the city for the pay
ment OF the stipula led charges for the publica-
ton.
1t does not imply the latter subordinate pow
erS, because they are in no WAY demanded for iTs
efficient execution.
They not even usual or proper or custom.
airy subordinate powers attending upon the prin-
ship. Ii they can be declared implied in or Incl
dental to the power TO cause publication, then IL
is not possible to set any limit 10 the subordinate
powers that are SO Incidental or so implied
There Is no definite line of denmark alton which
can be iudlciously assigned. declared aud applied
with deiDiteuesS and certainty Tie questI ON
OF what are and what are not such implied and
incidental powers then rests in the varying
oplnion and preferences of the Legislative Board
of The municipality The same reasoning estab-
fishes that such subordinate powers not in
any sense Indispensable or necessary TO the ac-
compll >hment by the city OF the purpose of its
establishment.
nese conclusions are much more manifest
and the principle much clearer III its application
III the case OF street notices and OF other pubtca-
lions made at the expense OF private citizens.
The city and county has power 10 designate
the paper in which said publications shall be
made and TO cause such publication. But II can
not contract Tor Inc payment OF The Expense
thereof by the city and county. Nor Is any ex-
press or implied power vested IN the municipality
TO contract on behalf of individuals. Ii may
legslatively impose burdens or liabilities upon
property, but the legislative power involves anu
calls for no contracting power as TO ADVERTISE
ments.
My conclusion is therefore: Flrst-That there
is no express power found In the law 10 make a
contract for the publication of resolutions and
notices.
SecOnd-That such power is given by mplica-
ton, as involved IN the power to cause such
resolutions 10 be published.
My third conclusion is-That such power TO
contract only extends 10 the power To engage the
city for the payment OF the rates stipulated for
the publications actually made.
The city cannot 90 beyond that point. 1t can
not contract TO give all its resolutions for pub
location TO any particular paper, or that any pa
per shall be the Official paper for any term or
time IT all. or tnat any paper shall have tie eX-
elusive or any right TO publish resolutions or no
Ices.
| have so far considered the question Of the
power of the city TO make the contract under ex-
animation IN the light If the limitations on the
city's contracting power inherent IN the nature
OF municipality as an inferior governmental
agency. possessing none but delegated powers
aud authority.
But the stlpulatOns In the contract to the
elect that certain Journal shall for definite
or any lime be the official paper of the city aud
county OF San Francisco, and shall have the
right TO be designated as such, far as they
purport 10 bind The city are void tor another
reason.
They are void because they are an attempt to
bargain away, and thus dvest legislative powers
vested IN the Board OF Supervisors by the law.
II these stipulatOns be binding upon the city
they involve The aDdication by The legislative
body OF The municipality OF part OF It's legtsla-
tive functions.
The Consolidation Act provides: Section IS,
page l6, that every ordinance shall be pub
llsbed In seine city Gaily newspaper etc"
THIS provision involves the publication in pur-
snanee OF the order OF the board. The power TO
oIdaln ordinances involves the power: First, to
consider proposed ordinances; second, 10 act
upon them by vote thereby passing them TO
Print; third, 10 designate the paper in which
they shall be published; fourth, TO direct such
publication; and fifth, by vote after such pub
licaIion TO 1nally adopt such ordinances.
Gel OF the enactiug legislative power vested in
the board. Neither eau be delegated to direct
such publication.
The Board of Supervisors, the legislative body
OF the CITY, cannot dlyest Itself OF OF abdicae any
part OF the enacung legislative power. (Dillon's
Municipal Corporations, Section SO, page 154,
and cases cited)
This proposition is established beyond dispute
Nor can II by contract bargain away any part of
its power, or by contract restrain itself from the
exercise OF such power.
II such contract is made it is void as an at
tempt TO delegate or resign powers vested by
State.
This proposition is as equally well established as
dhe former (Dillon's Municipal Corporations, Sec.
"a, p. LOG, aud eases cited) These principles
are NOR unsquivOcally applicable 10 the mater
vi SIC assessments. While as TO resolutions
std ordinances there Is no express declaration
that the Board of Supervisors shall designate the
paper FOR publication, The said direction being
Implied, there Is such au express declaration IN
the case OF street notices.
Section OF street law (aet Of March Is. 1880
provides, that notices OF street work" shall be
published Tor period OF i've days IN one or
more daily newspapers published and circulated
III said city and designated by said City Council"
The board must designate The paper IN which
publication shall be made. According 10 the
terms OF the statute this designation may be
made anew IN the case of each notice, although
the board may by general resolution designate
a particular paper as the paper In which all
notices shall be published.
But sucn power To designate is vested on the
same terms as any other legislative power in the
board. BY one exercise Il cannot be exhausted.
Like any legislative body Board Of Supervisors
cannot make rules for itself beyond its own con
troll II cannot by any device set limitations
upon lis own delegated authorities.
SO long as an ordinance designating an of
fetal paper stands publication must be made
therein unless Otherwise directed in the partlcu-
lar resolution 10 be published. But every such
oTdiusHce is reyOcabe. IL may be recalled by
the boald at any Time, or by any OF Its success
/ therefore conclude, and so advise that the
contract with MeSsrS. Bun er & Hester Is void;
"a IA flNa1
IT'S form, terms and The mode OF execution; sec
oud, because its stpuatiOus are in excess OF The
EXPRESS aud implied powers of the Board OF Su
peIFiSors; ana tnrd, because IL Is an attempt to
bargain away the legislative powers of the gov
ernlng board OF The city and county.
have assumed liz the preceding portion of
TINS opinion that the term public printing" as
Used in Section 50 Of the Consolidation Act in
cludes the publication In the newspapers of feso-
luuons, notices, bids, authorizations. etc. No
opinion Is called for upon that point by the inter
rogatOry OF your honorable body.
The Board Of Supervisors may II IL see IT.
enter into contract with a DAILY journal, bind
Ing the city TO pay certain stipulated raIes for
all matter actually published in said Journal but
Dy no Sucn contract can the ely bind Itself to
puDliSh all resolutions or orders in such news
paper. or 10 continue the SAID paper the official
organ OF the city.
Furthermore 1t Is not obligatory upon the
board 10 make such contract. Were il obligatory
then IN the absence OF such contract all municipal
legislation would come TO a standstl since no
pu0ilcation would be made as directed by law.
The board may In each and every resolution
designate The paper IN which the same shall be
published On the other hand the board may, IL
II see fit. by general resolution, designate GER
tain newspaper as the official paper of The city
and county OF San Francisco.
This should be done In view OF the fact that
the act OF March 9, 1873, In regard TO adyertis-
Ing, coutempiates the existence OF an official or
gau. But Notwithstanding Such official paper and
suc1 general resolution, each and every resoiu-
ton may designate paper in which the same
may be published and publication therein will
be legal and sufficient. Respectfully submitted
JOHN IL. BURST,
Attorney and Counselor for the City and County
OF San francisco.
MONTGOMERY STREET PAVEMENT.
The resolution providing that Montgomery
street. from Cal ifornia to Clay, except that
portion OF 1t to be paved by the railroad