The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-12-27
WAS NOT BINDING
The FeIl-Street Sewer
Contract Void.
SUPREME COURT DECISION.
Judge Slack's Opinion Thereon Is
Not Upheld
PROPERTY = OWNERS REJOICE.
Decided That the Supervisors Had
No Right to Delegate Author
ity to Others.
REJOICE

Eeil-street sewer contract. All the prop
erty-owners who resisted payment of theiI
assessments viii feel prOp0rtionately joy
full. while those who were scared into pay
ing under protest will feel prOportionately
SICK
OF the 1000 property.owners who we're
held liable for the assessment under this
contract one-third paid under protest.
Others, 20 the mum Der Of 1900 odd. resisted
payment and suits were brought against
all of them in the Superior Court. The
net amount involved to private property
owners. out of the total cost of S134, 944 80.
was $125.689 80. OF those who resisted
payment the case of Mrs. Ellen Boil on was
made the test case.
The suit arose from the passage of res
oluton bv the Board of Supervisors on
June l. 1891, of their intention TO construct
sewers on Fell street and connecting
streets, according 10 plans ana Specitica-
lions prepared by Charles S. lilo City
Engineer" AIer an order Tor the said
improvement Of the streets lad been
passed the Supervisors caused notices tor
sealed proposals 10 90 the work to be
given. ana upon receiving bids therefor
awarded the contract TO COnkGn & Co.
After the completion OF Inelr contract
Superintendent of Streets GiiIeran made
an assessment therefor, which, after being
recorded, was siiyeTed 10 Canklln 81 Co.
a portion of the expense for doing the
work was assessed against certain lands of
the plaintiff. Mrs. Ellen Bolton, who at
oncr brought an action 10 obtain a ludg-
ment declar ng that the contract made with
COnkhn " Co. for the work DO declared
null ana void and that the assessment be
declared not 10 be lieu upon auy of her
property. Superintendent cf Streets Gil
letan was include with Cunklln & Co. as
defendant 10 The suit. Judgment in the
lower court was rendered in favor Of the
defendants and against Mrs. Bolton, but
from THIS decision the latter appealed upon
the iudgmen troll and bill of EXCEPTIONS
In reversing the judgment of the lower
court the Supreme Court says: The
Legislature. Of the State has conferred
upon the Legislative department of the
government OF any city, winch in San
francisco IS the Board OF Supervisors, the
exclusive authority or the proVement
OF lis streets. This legislative depart ment
OF tile city has no power 10 delegate 10 any
other officer or body the authority to de-
termine upon. the ne eessily of making such
improvements, or the character or extent
of any improve ment which il NAV itself
direct TO be made.
The legislative body must determine n CT
only the character and extent of the i'm
proyement which it Will delegate but also
the amount of the burden which is to be
imposed therefor by the assessment upGn
Tie adjacent property 10 defiay the eX-
pense OF the Improvement. This power of
assessment Is raferable to the power of
taxation, and is i self a legislative power
which must not only find express authority
for ITS exercise but which can neither BE-
eXerc sed by an executive officer, nor dele
gated to such officer by the legislative
body Of the municipality. The clerical IT
Ministerial act of appoItioning The assess
ment up n the lands to be charged there
with may be performed by another officl al.
but whether the assessment shall be- i'm
posed upon the lands, and the amount of
such assessment, must be determined by
tie legislative body.
a prominent consideration before this
.bodyi determining whether an improve
sne0t shall be made upon a street IS the
amount oil It's expense aud the advantage
that vii accrue thereirOm to the property
when IS to be charged with the expense (:
and uul-ss II Can know to a reasonable
degree OF certainty What the expense will
he IL VIII be unable TO exercise any inteIli-
gent discretion in determining whether
the Improvements shall he made. Hence.
u becomes necessary for the legislative
BODY 10 know the probable expense Of
the improvements before it will order it 10
be maue. and after the Improvement has
been ordered the actual expenses must he
contract for doing the work as the data
upon which the assessment is 10 be CAL
culate0. 1hlS includes not only the price
at which the work is to be done, but also
the items of the material and work which
enter INTO lis construction, SO that the Off
cial who is to approve the expense shall
nave no other junction than to compute
the amounts mat Lave been previously APP
proved by the legislative BODY.
his power and the exercise of this
discretion has been conferred upon the
Board of Supervisors in the city and
county of San Francisco, and must be ex-
erclSed by that body, and cannot be dele
gated by It to the Superintendent of
Streets. Section of the street
Improvement act of his Stale provides
that before awarding any contract a notice
with specifications shall be given, invIt-
ing pro posals for doing the work ordered !:
and the City Council is authorized to re-
]ecl all proposals, ii it deems it fer the
pubic good, and can award a contract
only TO the lowest responsible bidder.
bis contract IS to be entered into by the
Superintendent of Streets with the bidder
To whom II has been awarded and after
Its completion tie Superin endent is 10
apportl0n the expense of the work, as
nXed by the contract. unOn the lands Ii a bic
10 be assessed therefor.
lie proceedings In the present case
snow vide departure from these pro-
visions. The work which was described
In the resolution Of intention was the con
structon of sewers upon certain desir.
mated streets of the materials and dimeD-
slnns hereinafter described and accord
ing 10 plans and specifications prepared by
Z. ,. Iilton. City Engineer One of hese
speciti atoms was IN the following terms /:
III the soil be of improper nature for a
foundation, 1t shall be removed 10 a snfi-
cent depth and two tiers of three-jnch
planks be laid, etc. Here the Supreme
Court recites several specifications AT
length. a gives the bid presented by
Conklln d Co., In which they offered TO
undertake the work at certain rates. The
contract for this work was awarded t
them at their own prices, aud was after
ward entered into between them and the
Superintendent of Streets.
Respecting this The court remarks: ga
mere glance al the proceedings shows that
the amount of tax which is TO be imposed
upon the lands for the expense OF the i'm
pTovement was not determined by the Su-
pervisOrs in their award of The contract.
but hat they gave TO the Superintendent
OF Streets the discretion to determine
that amount 10 the extent of fully one
third thereof These matters
were to be determined by the Superin-
tendent of Streets alone. nor were the
conditions for his determination fixed.
What constituted an 'improDer' nature for