The herald., 1896-06-07
THAT ELECTRIC FRANCHISE
certiorari Not the Way to Knock Out the
Bid OF S. e. Scott


In the case of Spruance VS.. The City
Council of Los Angeles. Judge Shaw yes
terday gave an opinion sustaining the
demurrer to the complaint and dismiss
ing the proceedings. This was suit TO
annul the action of the council IN grant
ing the franchise to Scott, who bld Sl0I
and agreed to light the city hall, as
against Spruance. who bid 500 cash. on
the ground that the latter was the high
est bidder, the council having no right
to consider anything but cash in award
ing bids Judge Shaw, in his decision.
holds that while the supreme court has
given an opinion holding that the coun-
Gil can only consider cash bids, that
certiorari is not the proper remedy. Il OIL
lowing is the opinion:
This is proceeding by way of certio-
rari to review and annul the action of
the city council of Los Angeles in grant
ing a franchise to one l.. f. Scott to erect
poles and run wires thereon along the
streets of the city for the purpose OF
supplying electricity to the iphabitants.
The franchise was granted after ad-
vertising the same under the act of
March 90, 1898 (Stats. 1893, 2SS), which
provides that such franchises must be
awarded to the highest bidder after due
notice of the time of making the award.
At the time fixed in this instance num-
ber of bids were received, and among
OIneTS a Dlu ny l.. Il. i'tOlt, OIlVI ms "
give S1O7 and furnish electric lights for
the city hall during the life of the fran
chise, and a bid by Spruance. the petit
toner, offering to give $506 The coun-
Gil awarded the franchise to Scott ana
passed the ordinance granting it ac-
cordingly.
In the case of Thompson VS.. Board of
Supervisors III Cal. Dec. p. I'D, decided
March 90, 1896 it was held by the supreme
court that nothing but cash bids can be
taken or considered in a proceeding to
grant franchise, and that the franchise
must be awarded to the bidder who Of
fers the highest price in money and with
out conditions. Under the principles
thus decided it is clear that the bid of
Spruance was the highest legal bid
and that the franchise should have been
awarded to him, even if the other one
would manifestly prove more valuable
to the city But it does not follow that
certiorari is the proper remedy to cor
rect this error, if, indeed, the petitioner
himself now has any remedy at all. y
writ of review or certiorari can be
granted only when an inferior board. of
ficer. or tribunal. exercising judicial
functions, exceeds its jurisdiction, and
there is no appeal. or other adequate
remedy &C.. c. p, section 1861. All three
conditions must concur; that is, there
must be an exercise Of judicial functions,
an act beyond the jurisdiction, and an
absence of the right of appeal, or other
remedy, or the writ will not lie,
The granting of Il franchise is mani
festly not a judicial act. 1t is the eX-
ercse of part of the Legislative powers
of the state which in this particular in
stance was delegated to the municipal
government of the city of Los Angeles.
But it is contended on behalf of the
petitioner that although the granting
of the franchise may be a Legislative act,
yet the council must act judicially in
awarding the same to highest bidder be-
fore the ordinance granting II is passed,
because in so doing it must determine
which was the highest bid. thereby eXer-
cising a discretion which was judicial
in its character The argument ON this
proposition is based entirely on the as
sumption that the council had a legal
right to consider the value of the offer
to light the city hall as q part Of the bid
of Scott. and if il decided that il was of
more value than the offer of Spruance
then it had the right to award the con-
tract as it did. This promise is d false
one. In the case above cited the supreme
court decided that the council had not
such right or power. In order to per
init the action to be reviewed by Ger
tiorari the board or tribunal must not
only be doing some act judicial i'm its
character but it must have a lawful right
to act judiciallY. The case therefore
stands in the same light as if the offer
10 lSnl IIc CITY nan ldl Ilpl 'ttil MIN
toned in the bid. aud the council had
simply failed to give the franchise to the
highest bidder No exercise of discre-
tion is required o determine that $500
is more than sl07. 1t is mere matter of
mathematics. question which proves
itself and is clerical and ministerial in
character and not judicial.
The case Of Townsend VS. Copeland
(56 Cal. 615) seems to be precisely in
point in all respects. In that case the
board of supervisors had advertised for
bids to do the county printing. The two
bids had been received, one for $3.50 and
one for 8 cents. The board decided that
the latter was not a bid" and let the
contract to the other bidder. A pro-
ceedng was begun to annul this action
by writ Of certiorari and in regard to
that proceeding the court says
THE board in determining to whom
the contract should be awarded. was
absolutely obliged to award the contract
to the lowest bidder. or il had right to
exercise its discretion in the matter If
1t was obliged to give the contract to the
lowest bidder it follows that there was
nothing in the power which was judicial
In its nature, but it was purely minis
terial. If, on the other hand. the board
possessed discretionary power in the