The record-union., 1894-06-26
PURCHASE OF MUNICIPAL SUPPLIES
Opinion on the Subject by Corpora
ton Counsel DeyIin.
He Says the Mayor May Purchase in
Case of Necessity, Under S100,
But it is the Trustees Duty.

| submitted long opinion, covering
twenty pages Of typewritten matter. on
| the subject of the respective powers of
| the Mayor and Trustees-particular in
the matter Of the purchase of supplies.
| The opinion shows great research by Mr..
| Devlin, as it embraces vast number of
/ decisions Of the Supreme Courts of va
rious States on points bearing on the is
sue here. The following extracts are
given:
10 the Board of Trustees Of Sacramento
| Cuy-GENTLEMEN In response to your
request for an opinion upon the power Of
| the Board of Trustees and Mayor, re-
| spectively, 10 purchase supplies for the
use OF the city, desire 20 say that l have
! given the matter as careful attention as
| the time at my disposal between the time
| OF your request and the time OF this
meeting would permit, and l respectfully
| submit the following:
Every municipal government is pos
seSsed OF a certain amount OF sovereign
| power and charters are framed for the
purpose of providing for the exercise of
this power, dividing it into different de-
| partments, as executive, legislative and
| judicial, and placing proper checks and
| balances upon each. These divisions gen
orally are not sharply drawn, and ire
quently one department. exercises powers
that, in more logical arrangement, would
exclusively belong TO another.
! Thus in our charter, for instance, the
! executive power is vested in the Mayor
and his appointees and the legislative in
your board. But these powers TO some
| extent run into each other. The Mayor
| is also part OF the legislative power.
| No ordinance becomes ettecuVe without
his approval, unless passed over his veto
by six Votes, and he has similar veto
| power over contracts calling for an eX-
| penditurO OF more than 500 made by
| your board. On the other hand your
board by virtue of the jurisdiction you
! have over public works and various de-
partmentS OF the city government, eXer-
| else certain amount OF executive power.
As to the power of the Board OF Trus-
tees to purchase supplies, Section % of
Subdivision OF the charter provides that
the board shall have power 70 sell, use,
lease. control, improve and take care of
/ the real estate ana personal property of
the city; provided, however, that said
| board shall have no power TO mortgage,
or hypothecate any property OF said city
for any purpose"
Section ~ of the charter provides that
The board shall have charge and super
intendence of all public work of every
kind not otherwise controlled by general
law to bedone for the city, and also of
! furnishing all material and supplies for
| public use except as otherwise provided
in this charter. 1t shall be the duty OF
the board to vigilantly inspect all parts
of the city and cause to be done from time
| to time such work as 1t shall deem nee
essary or proper"
Subsequent sections. provide for letting
contracts to the lowest bidder, except
| where the estimated cost is less than SlOO,
and except there be immediate danger
from inundation the board may contract
for the repair OF its levees. Other Sec
tions Of the charter speak Of the board
having control OF the ire department,
Water Works. etc.
The board is authorized to make all
needful rules to govern the official con-
duct and duties of all officers of the city
and to impose additional duties upon
those whose duties are stated in the
charter. They fix the tax rate, examine
and hquidate all accounts against the
| city, and have power to allow or reject
the same, or any part thereof. They
| make appropriations, examine and audit,
| reject or allow the accounts OF officers,
! ana make contracts and agreements Tor
| the use and benefit of the city.
From these and other sections ofthe char
ter, unnecessary now to refer to, it seems
plain to me that the Board of Trustees
have power to purchase supplies for the
city where the cost Of the same does not
exceed Sl00, and to purchase supplies, or
| authorize some officer to purchase sup
plies costing over Sl00, with the Mayor s
! sanction, or without his sanction if passed
over his veto; also, that the Board of
| Trustees have power to make any repair
or improvement not exceeding the esti-
| mated cost OF 500, without contract, and
any public work exceeding that sum by
| contract.
This power to do public work, how
ever. will be controlled by any general
law of the State, which on the subject TO
which it relates will supersedv the pro-
visions of the charter on the same sub
ject. 1t is in the discretion of the board
to say what supplies shall be purchased
and what price shall be paid therefor.
The charter nowhere gives the Mayor.
in express terms, the power to purchase
supplies for the city. He is made, by
Section rs, chief executive officer of the
city. By Section II, ''He shall have a
general supervision over all departments
and public institutions of the city, and
see that they are honestly, economically
ana lawfully conducted.'
by Section -, "The Mayor, by and
with the consent of the Board OF Trus-
tees, shall appoint all officers of the city
whose election or appointment is not
otherwise provided for in this charter or
by law" =
Itwould seem from provisions quoted |
that the Mayor is an agent OF the city OF
Sacramento, and as such may bind the
city by his acts, when performed within
the scope OF his official duties aud when
| actually necessary for the benefit of the
city. | think his powers as agent are
broad enough to enable him to purchase
such supplies as may be actually neces-
sary tor the preservation OF the city prop
erty or to carry on the work OF some de-
partment, provided the cost of the same
| a. nna< nd hot nc oafgs IN
such matters bind the city as its agent.
The distinction between the powers OF
the Board OF Trustees and those of the
Mayor is that the powers OF the board
are more extensive, and the board by
reasonable ordinance may control. The
board mas discretion to buy new things.
in other words, to make contracts for the
use and benefit of the city. The.lAiayor
can buy. as the agent OF the city, only
what is actually necessary to perform his
duties. 1t seems TO me that his powers
and those of the board may be
compared to the power of a Board
| OF d irectors of a corporation and
the power of a Superintendent, respect
lively. The Superintendent has power to
bind the corporation when acting in the
scope of his authority, while the Board of
Directors have Legislative power, and
may exercise discretion which the Super
| intendent cannot.
Il The power, however. to pur-
chase supplies is conferred upon the
board of Trustees, acting as a unit. in
regular meeting. and is not conferred
upon the individual members of the
Board. Under the old charter the Second
Trustee was exotficio Street Superin-
tendent and conducted the Street Depart
ment; the Third Trustee was exoTiicio
Commissioner of Water Works and con-
Quoted that department, and the Fire
Department was managed by separate
commission. But the Board of Trustees
: under the new charter can act only as q