HENRY MEUSER v. JOHN N. RISDON and WILLIAM WARE, 36 Cal. 239

By the Court, Sanderson, J. : The sixth

section of the statute in relation to the improvement of streets in San Francisco (Stats. 1862, p. 398) provides among other things that the Board of Supervisors, before giving out contracts for street work, shall cause public notice to be given, in the manner therein directed, inviting sealed proposals for the performance of the work contemplated; that the Board shall award the contract to the lowest responsible bidder; that notice of the award shall be published for a certain time, within which the owners of the major part of the frontage may elect to take the contract; that if the owners take the contract, but fail to commence the work within a certain time, the Superintendent shall contract with the original bidder to whom the work was awarded, but if the bidder neglect for a certain time to enter into a contract, the Board of Supervisors shall again publish for proposals, the same as in the first instance; that if the owners taking the contract enter upon its performance, but fail to complete it within the time fixed by the contract, or such extensions of time as may have been granted by the Board of Supervisors, the Superintendent shall report their delinquency to the Board of Supervisors, who may relet the unfinished work, after having pursued the formalities provided for in the first instance.

From these provisions of the statute it is plain that where, from a failure on the part of the contractor or owners to perform the work, it becomes necessary or the Board deems it expedient to relet the contract, the same course must be pursued which is prescribed for the letting in the first instance; that is to say, the Board must move in the matter by passing an order directing notice of the letting to be published and inviting bids. The Clerk of the Board, of his own motion, has no power in the premises, his relation to the second or any subsequent letting being the same as to the first.

In the present case the Board made no order for the second letting. This defect cannot be cured by any general order of the character of that of the 15th of August, 1864. The Board has no power to make general orders, applicable alike to all future proceedings. Each proceeding to improve streets in San Francisco is necessarily a separate and independent. proceeding, and must stand or fall by itself.

A general order of that character involves a transfer by the Board of its own appropriate functions to its Clerk, for its effect is to cast upon that officer the power to determine whether the contingency provided for by the statute has arisen. But were it otherwise, the present case would not be relieved, for it appears that the Clerk was not even directed to advertise for bids by the Committee on Streets, Wharves, Grades, and Public Squares, as provided by the general order in question.

So far as the lot owner is concerned, these proceedings are but steps taken for the purpose of imposing upon him a tax for a specific purpose, as we have repeatedly held. (Emery v. The San Francisco Gas Co., 28 Cal. 345; Emery v. Bradford, 29 Cal. 83; Hendricks v. Crowley, 31 Cal. 474.) To such proceedings the doctrine of ratification invoked by respondent has no application. If this was an action by the contractor against the city to recover the contract price, the rule in the case of The People v.

Swift, 31 Cal. 26, would be in point, and it might be that the subsequent proceedings of the Board in awarding the contract would be held' to be a ratification of the unauthorized act of their Clerk. But such is not the case. The plaintiff sues as the assignee, or in the place of the city, to collect a tax levied by her, and, like her, he must show that the entire proceedings on the part of the city have been in strict conformity with the statute under which she worked. (Hendricks v.

Crowley, supra.) If any of the steps taken were invalid, or not according to the statute, no subsequent act on the part of the city could render it valid. Whatever power of ratification or confirmation may exist in such cases exists in the Legislature alone Judgment reversed.