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

the contract as executed are not in conformity
with the published proposals and the bid. In
tile published proposals il is announced that BID
| derS 10 have the right to collect their usual
rates from The Iarties interested Tor all resolu-
tons aad orders:
First-Conferring special privileges.
Second-Opening and closing streets.
Third-Publlsliing official notices.
Fouitll-Changtng established grades.
Fiith-Granting franchises
1t is nowhere stated In The proposals that the
said undertaking should extend 10 resolutions
ana notices as to street work. Reference Is
made TO The latte only in the definition OF what
constitutes public printing.
The IopoSalS having called for bids for the pub
LEGATION OF ali the resolutions of The board, ex-
cepiug those IN express terms excluded, and res
oiutons TO street work not being included
among those excluded, and being furthermore
included in the definition of public printing con-
taiped in he proposals, such resolutions as TO
street wUrk were comprised within the de-
| ella ed subject matter of The bids. The bids
made were applicable to such resolutions. They
| were, according to the BIDS, To have bee pub
| lished without charge. Nevertheless, WI ell The
award was made, The resolutions and notices oil
street work were added as part OF the puoica-
lions for which Tie contracting parties were en-
| Tilted TO charge and coleci, and the contract
| was executed in conformity herewith.
II the law required the Board OF Supervisors
TO advertise for and 10 award the contract 10 the
| lowest bidder, then The Board had no power to
| depart in the award aud IN the contract as exc
! cuIed from The proposals.
Tie proposals embodied in the advertisement
for bids we've the foundation Of the authority OF
! tile bOIrd under The statute 10 make any con
tract This publication, as required by statute,
| conferred authority upon The bOatd 10 execute
| contract IN conformity Win the proposals ana
1 no other. 4 contract departing from these pro-
! poSals was not a due execution of the statutory
| authority, and was void.
tract is solely ON the ground That Il varies from
| The proposals and bids, ana Is not responsive
thereto, aud is therefore without The support re-
CURED by the law.
In The steps preliminary to the execution of the
contract the law was not complied WITH, aSsum-
lug that The proposals as 10 advertising for bids
was applicable.
that: IAN contracts for building ana printing
must be given by Tie Board of Supervisors
TO the lowest bidder d" after due public no.
! tee published for no less than five days, ETC."
II the provisions of this section are applicable,
| the Board OF Supervisors could award no CON
tract for The uul.icaton of resolutions orders or
authorizations unless bids upon all thereof were
! advertised Tor aud received, and the contract
| awarded 10 The lowest bidder. q Dtllun's Munich
! pal Corporations, 1860 And without such pre-
| limlnarieS every sucu contract WouIu De aOso-
! lutely void.
| The bead could not advertise for bids for the
publication Of certain classes OF resolutions, no
] tees, etc, and base upon such advertisement
proposals and tue bids responsive thereto con-
/ tract covering not only The classes TO which
bids had been called for and received, out also
ulher classes net covered by proposals and bids.
The board called for bids as 10 orders, resolu-
lions and authorizations other than resolutions
and orders. Fist, comforting special privileges;
second, op ming and closing streets; thlrd, pub
fishing Official notices; fourth, changing eSab-
fishes grades; fin, granting franchises.
BIDS were made as 10 all orders, resolutions or
! authorizations excepting those Of lie eHumer-
! Rled descriptions. As 10 the latter there were
/ no bids. II was understood, 50 the proposals
read, that Tie latter orders aud resolutions were
/ to be published at their usul rates. But such
/ an understanding constitutes no It'd. II affords
! no competition between rlTal journals. II calls
! for no rival proposals IN point Of rates The
! lids, when IN. refer exclusively to The TesOu-
! lions, orders and authorizations hrSt mentioned
! The proposals thus read might have formed
! foundation Tor a contract VITA a.essrs. Bunker
| ana Hester Tor tn publication by the latter,
Without charge, OF all the resolutions, orders and
! authorizations. excepting those enumerated.
As 10 the latter (>uppO-ing Section GO of the
! Consolidation Act Applicability, the stlpulatiOHs
! Of The contract were VOID for Une want Of adYer-
! tiscment Tor bids ana lor want OF bids.
AS 10 lie street notices the case Is stronger
| They were not referred To IN the proposals other
/ Wise than n being included In the definition of
! public printing. No call was made therein for
IdIe as 10 lhel publication, neither dld The bids
refer TO or state rates them. Ii is eXtrava-
CANT 10 say that as 10 them bids were advertised
| LOT OF received. As TO Them the statutory power
! has not been pursued always assuming that
! void.
! Upon this subject l refer your honorable body
| to the admirable opinion OF Hon. Ohm Hunt In
| The case OF Perkins vs.. Bingham ell al.
| Ii may be urged that the bids were subStanti-
ally presented IN the case of the excluded classes
! OF resolutions, inasmuch as tie proposals de-
| clare the contract shall be executed with The I'M
| Outstanding that the successful bidder shall be
| At liberty TO charge It's usual rates for the pub
fishing OF sueh resolutions and nulices. But this
contention is not maintaiHaDle. In the first
| place tie proposals do not Call all for bids as
| 10 Suen publications. There is furnished in the
| proposals no foundation for such bids. If Sec
/ ton 90 OF the Consolidation Act is applicable a
| call Tor BIDS III compliance herewith must pre-
| cede and be cOeXiensIye with the contract.
| Otherwise the statutory authority Is not exer-
| cIsed. Beyond THIS II cannot be successfully
| main aimed that offer 10 do certain publishing
| at the usual rates OF the paper is bid coniem-
| plated by NE statute The law cOnlemplaies
that bids viii state certain definite rates, and I'M
less this requisite Is compiled with there are no
legal BIDS. The term " The usual rates" Is
| flexible Term. The usual rates OF to-day may not
| be those of tomorrow and may not b. those Of
| yeSte fdJy.
| In my opinion heretofore l have Addressed my
sell 10 Inc lllegaIties ID tLti6rn OF the contract
/ and ID the proceedings proceeding its execution.
/ DER il VOID.
The contract however in so far as 1t assumes
10 grant 10 Messrs. Bunker Hester the exelu-
sye right 10 publish resolutions, ORDERS ETC., in
the San Francisco Daily Report, aud in so far as
II grants to such parties the rlght 10 have that
| Journal declared ana continued the official Jour
nal FOR the city for the PERIOD OF two years, is
| absolutely void for want OF power in the Board
| of Supervisors TO SO bind the city and county OF
| San Francisco.
| This results first, because no power to make
contract containing such sllpulatiOns is con-
! ferred upon The city and county OF San Francisco
! by the laws from which that municipality de-
| riEes its existence and authority; ana second,
! btcduso The contract involves an attempt TO bar
| gain away legislative powers vested IN the Board
| OF Supervisors by the law.
"a municipal corporation possesses and can
exercise the following powers and no Others:
First, those granted In express words; second,
those necessarily or fairly implied in or incident
TO the powers expressly granted; third, those
essential TO Tie decla ed objects and purposes OF
the cOrporatlOn'-nOt simply convenient. bat In
dlspensable. u bilious Municipal Corpora
lions, 49,
Unless the power TO make tile contract under
| consideration Is expressly granted to tile city
and county, or IS Implied in or Incident to the
powers expressly granted, or Is essential 10 the
declared objects and purposes OF that corpora
ton. II does not exist. This being to the ques-
| ton whether the power belongs 10 The city under
| any OF the above heads2
There Is certainly express grant anywhere
| In the statutory laws of this state. There are
| various provisions III the Consolidation Act and
| IN Tue general statutes upon which il has been
| supposed This power rested, but none OF them are
| or contain grants OF powers 10 the municipality.
| section % OF the Consolidation Act provides;
| "All contracts Tor . printing to BE- done
| for the said city aud county must be given
| by the Board OF Supervisors TO the lowest bid
| der" etc.
Upon well-setiled principles of statutory con-
| strucucn that section (assum ing thar printing
| means or includes publishing is NOT statutory
| grant OF any power 10 the corporation. IL inn
Plies lie existence OF the power by previous leg
ISaLEe grant. It's sole JUNCTION ana scope is 10
supermpole upon such pfe-eXistIng power Ger
tain restrictions, to wit: First-Any contract
made must be given TO the lowest bidder. Sec
ond-Bids must be advertised
Iie same Is true with reference to the act OF
March 8, 1878.
o&Worley's Consolidation Act, Sup c., page
That act provides that: Advertisements pub.
lshed by order OF the Board OF Supervisors
cdlIlhg iof DldS snail be published In three daily
| papers Tor period Of not less than tive daysn
| etc. -SS o.
| ms statute assumes first, a contract In power;
| second, previously existing requirement IN the
| law that IN The case of certain contracts tbev
shall be let by bids, anu bids shall be called for
| by advertisement. "
1t is no more a grant OF power to make a
| printing contract than 1t Is grant OF power to
| grant franchise, to make a contract for the
| construction Of school buildings, or for the pro
| vision for supplies for the County Jail, or the
cleaning OF the streets Its sole scope and func.
adj
meGt which other previously existing provisions
| of the law direct.
Nor Is there any ground whatsoever for pre-
tending TO mud grant OF authority IN tile act OF
April =. 1876. (Worley's Consolidation Act, Sup.
SO, D. 209)
mat act provides "that the Board Of Supervise
ors snail not hereafter make any contract for
any purpose binding said city for a longer period
than Two years" This Is but a restriction upon
| law. Va 'S
lr either OF these statutory provisions can he