San Francisco Gas Light Co. v. Dunn

McKinstry, J.: The clause of the contract between the City and County of San Francisco and plaintiff, of May [19] 24,1869, necessary to be recited, reads: “Upon the expiration of the term of five years, hereinbefore limited, the party of the first part (unless it shall elect and notify the party of the second part of its election to advertise for proposals as hereinafter- provided) shall purchase and take from the party of the second part all the gas required for lighting said city as aforesaid for another term of five years, dating from the expiration of the term hereinbefore limited, and paying therefor at such rates as shall be agreed upon by a majority of a commission to be constituted: one commissioner to be appointed by the party of the first part, one by the party of the second part, and one by the two appointed.” On the twenty-fourth day of February, 1874, the Board of Supervisors were advised by the then City and County Attorney that the contract of May 24, 1869, was- not legal and binding upon the city and county “so as to require the purchase of gas from said company during the second and third terms of five years, or either of them, therein mentioned, for the reasons following: * * * Second—The Board of Supervisors have no lawful authority to delegate to persons not members of that board the power to fix and determine upon the amounts to be paid by the city and county for gas, or to alienate from the Board its power of final determination, with — 583 — respect to such amounts.” (Municipal Reports, 1874-5, p. 733.) We fully concur with the view of the City and County Attorney as above expressed. We also agree with the same officer that the adoption by order, duly published, of the sums agreed upon by a member of the Board, a representative of the plaintiff and a third person by them selected, is, in effect, the fixing by the Board of Supervisors of the sums to be paid by the city in a legal and binding manner. In his opinion, addressed to the Board February 28, 1876, with reference to the first renewal (so called) of the gas contract, the City and County Attorney said: “ The contract of May 17,1874, mentioned in resolution 8,293 (new series) as the renewal of said contract with the San Francisco Gas Light Company, on May 17,1874, for a second term of five years, is a binding and valid contract, * * * not because of the contract of May 19, 1869, but because what «was done on the part of the Board of Supervisors and on the part of the San Francisco Gas Light Company, on or about May 19,1874, created a new contract, perfectly good under the statute, * * * from the time of the proceedings taken at the latter date.” (Trans, fol. 141.) On the seventh day of July, 1879, the following resolution —which was subsequently and on the eighteenth of the same month approved by the Mayor—was finally passed by the Board of Supervisors: “ Resolution No. 13,725. (New series.) “Resolved, That the rates to be charged for gas to be supplied to the City and County of San Francisco by the San Francisco Gas Light Company, during the term of five years from the nineteenth day of May, 1879, as fixed by the commission composed of J. O. Rountree, J. B. Haggin and J. O., Eldridge, appointed and acting under and in pursuance of the contract existing between said City and County and the said company, be and are hereby accepted, adopted, and approved, and the report of said commission is hereby adopted, ratified, and confirmed. “ In Board of Supervisors, San Francisco, July 7, 1879, — 584 — after having been published five successive days, according to law, taken up and passed by the following vote : “ Ayes—Supervisors Foley, Mangels, Danforth, Rountree, Farren, Acheson, Scott, Haight. Noes—Supervisors Talbert, Smith, Gibbs, Brickwedel. “(Signed) John A. Russell, Clerk.” The rates fixed by the “ commission ” were before the Board in the report of Supervisor Rowntree. The resolution is, of course, to be read as if the report referred to were incorporated in it; and thus read, it fixes the rates which the City and County agreed to pay. Thus the “ final determination,” with respect to the rates to be paid, was exercised by the Board of Supervisors, and not by the “ commission.” Section 74 of the Consolidation Act empowers the Board “by regulation or order * * * to provide for lighting of streets,” and by section 71 it is enacted “that the street-light fund shall be applied and used in payment for lighting the streets of the city, and for the repair of lamp-posts in pursuance of any existing or future contracts of the said City and County.” It is not disputed that under these provisions of the charter the Supervisors have power by “ order,” duly published, to contract for the lighting of the streets. As we construe resolution 13,725 (new series), they did so contract. It is urged, however, that the Board had no power to make such contract to run for a period of jive years. We entertain no doubt that the power conferred upon the Supervisors, “ by resolution or order,” to provide “ for lighting the streets ” includes a power to enter into an appropriate contract for carrying into effect the major power. The power to provide for lighting the streets has been held, however, to be a governmental power, to be employed by the legislative department of the local government; such as can not be ceded away, nor used in such manner as shall control or embarrass future legislation. “No legislative body can part with its powers by any proceeding so as not to be able to continue the exercise of them. Such body has no power, even by contract, to control and embarrass its legislative powers and duties.” (Cooley’s Con. Lim. 205.) In East St. Louis v. Gas Light Company, the Supreme — 585 — Court of Illinois said: “ We do not think there can be a doubt that the power conferred on the city council to provide for lighting the streets and provide the means to pay for the same by taxation is legislative power.” (10 Rep. 109, and cases therein cited.) It is not to be inferred, however, that a subsequent Board of Supervisors may disregard every contract entered into by their predecessors, or annul every such contract, even by formal legislative act. The power of the members of the Board to determine, on behalf of their constituencies, that it is expedient to secure the lighting of the streets, by a company or individuals, upon certain terms, is legislative. But when a contract (which the Board is authorized to make) is entered into between the Supervisors and a company or individuals, the corporation is as much bound by it as is any other person by his contracts. If, however, under pretense of carrying into effect a legislative power, conferred, the Board shall enter into such a contract as was evidently not intended to be authorized, or such as shall amount to a cession of the right of future legislation, the contract is invalid. In East St. Louis v. Gas Light Company, 10 Rep. 109, it was held that a contract giving to a company the exclusive privilege of lighting that city for thirty years was invalid. But in the absence of an express limitation as to the period of time for which a contract may be made, we would hold, perhaps, that the contract with the plaintiff for five years was not beyond the power of the Supervisors. The exigencies of the present case do not demand a determination of that question. We only say we are not now prepared to declare that such a contract, for five years, must necessarily embarrass the Supervisors or disable them from performing their legislative or governmental functions. (Dillon’s Mun. Corp. 61.) While, therefore, the attempt, by the clause of the contract of 1869 above recited, to transfer to “ Commissioners ” the power conferred by the charter upon the Supervisors, of determining what rates it might be expedient for the city and county to pay to a gas company five years in advance, is of no force or effect, because the Board had no power thus to cede to others their legislative function (and of this the Supervisors were fully informed by their legal adviser long — 586 — before the contract of 1879 was entered into by them), it may be assumed, for the purposes of this decision, that the contract of 1879 is valid as an independent contract, unless prohibited by express statutory provision. An act of the Legislature was approved April 3, 1876, the first section of which reads as follows: “ If at the beginning of any month any money remains unexpended in any of the funds set apart for maintaining the municipal government of the City and County of San Francisco, and which might lawfully have been expended the preceding month, such unexpended sum or sums may be carried forward and expended by order of the Board of Supervisors in any succeeding month; provided, that said Board of Supervisors shall not hereafter make any contract for any purpose binding said city for a longer period than two years.” (Stats. 1875-6, p. 854.) The proviso is certainly very explicit, and prohibits the malcing of any contract for any purpose “ binding said city for a longer period than two years.” If we could hold this language to mean simply that the city should not be bound, for a longer period than two years, by any contract which the Supervisors might make, we could command the Auditor to pass the claim as prayed for by petitioner herein, inasmuch as it is for gas furnished during the month of October, 1879— within two years after the contract of 1879 was entered into. It was the unmistakable intention of the Legislature, however, to deprive the Board of Supervisors of the power of entering into any contract which, by its terms, purported to bind the city for a longer period than that named in the proviso. The contract of 1879 was, therefore, one which the Supervisors were not empowered to make, and any claim based upon such contract one which the Supervisors had no authority to allow. . But an examination of the record fails to show that the claim presented by the plaintiff, and allowed, audited, and approved by the Board of Supervisors, for gas consumed in the month of October, 1879, was based upon the contract of 1869, or the renewal thereof (so called) of 1879. The claim or demand itself refers to the authority on which it is based as follows: “ The above demand, being authorized by Section 1, Sub — 587 — divisions 1 and 5 of an Act entitled ‘An Act amendatory of an Act entitled an Act to repeal the several charters of the City of San Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof, approved the nineteenth day of April, A. D. 1856,’ and as amended by an Act amendatory thereof, approved the eighteenth day of May, A. D. 1861 (6), approved March 20, 1866.” (Stats. 1865-6, p. 436.) The portions of Section 71 of the Consolidation Law thus referred to are: “First, * * * the Board shall, in making said levy of said taxes, apportion and divide the taxes so levied and to be collected and applied to specific funds known as the Corporation Debt Fund, * * * Street Light Fund,” etc. “ Fifth, the Street Light Fund shall be applied and used in payment for lighting the streets of the city and for the repair of lamps and posts, in pursuance of any existing or future contract of the said city and county.” As we have seen, there was, immediately prior to the action of the Board of Supervisors upon the claim of the plaintiff, no existing contract between the plaintiff and the city and county. But after the claim or demand of plaintiff was presented, “duly verified in the form prescribed by law and the order of the Board,” and on the 8th of November, 1879, said claim was referred by the Board of Supervisors to their Street Light Committee, by whom it was approved and indorsed, and on the same day the Board passed to print an authorization on the Street Light Fund for the payment of the amount of the claim, which was duly printed for five days thereafter. On the 15th of November, 1879, the plaintiff’s claim or demand was finally passed and approved by the Board of Supervisors, was approved and signed by the Mayor, was thereafter regularly published, and after such publication, and on the first day of December, 1879, “ was taken up in open session by said Board of Supervisors, and by it allowed, passed, and ordered paid out of said Street Light Fund. We have seen that by Section 74 of the Consolidation Act the Board were authorized, “ by order,” to provide for lighting the streets. The order or ordinance allowing, approving, and ordering paid the demand of plaintiff for gas, etc., furnished the city in October, 1879, was regularly published and passed, — 588 — and was an action of the Board which they were empowered to take, by Sections 71 and 74 of the Consolidation Act. They were not legally bound to allow the claim by reason of the contract of 1869, or of any “ renewal” of that contract. But the gas had been furnished the city, and they were fully empowered to provide for its payment such sum as it was worth. They have allowed a claim which they were authorized to allow, in such amount as the Board should deem reasonable and just. We must presume that they were of opinion that $22,514.80 was the fair value of the gas furnished and repairs done by plaintiff, during the month of October, 1879. Neither the Auditor nor this Court has power to review the judgment of the Supervisors with reference to the amount allowed to plaintiff as the actual value of the gas furnished and repairs made. As we have seen, the city and county is not bound by the contracts of 1869, 1874, or 1879, and no duty is cast upon the Board to audit or allow any claim of plaintiff, according to the rates mentioned in any one of those contracts. But each time a claim is presented by plaintiff, which is allowed in whole or in part by the Board of Supervisors, the latter employ their legislative function of deciding it to be expedient for the city and county to pay at the rates named in the bill, and also enter into a fresh contract to pay the sum allowed. This, as we have seen, they have power to do. The allegation in plaintiff’s petition, that the Board of Supervisors allowed the claim as “based” on the contract of 1869, can not influence the decision of this case. The allegation is not one of fact upon which an issue could be framed. The Board of Supervisors allowed the claim, and the defendant here, a ministerial officer, has no discretion to reject it; nor has he any authority to refuse to pass it unless the Board exceeded its powers in allowing it. The only facts capable of proof with respect to the allowance of the claim are proved by the record of the proceedings of the Board, which shows only the presentation of the claim and (after proper publication) the votes of the Supervisors allowing it in whole. That the members of the Board mistook the law, or supposed they were bound by an invalid contract when they voted to allow the claim, does not appear from the record of their proceed — 589 — ings, and can never be made to appear legally until some method is invented for proving the unspoken thoughts of men. The presumption is, that they did their duty; and this presumption is not weakened by the circumstance that they had before them the opinion of the former legal adviser of the Board that the contract of 1869 expired in 1874, nor by the further circumstance that they had also before them the Act of 1876, which absolutely prohibited such a contract as was attempted in 1879. Neither plaintiff nor defendant in the present action is at liberty to aver or admit the motive which induced members to vote for the allowance of the claim, except so far as the motive can be established by their formal and recorded action. The defendant here can only object that the Board had no power to allow the claim, and—without any intimation or suggestion that too much was, in fact, allowed—we say the members of the Board had the power to allow many times the actual value of the gas consumed if they dared to violate their official duty. They alone had power to determine the real value—their judgment is conclusive—and it is not a function of the Courts to make a contract for them, nor to set aside a contract which they had the capacity to make. It follows that the authorization upon the Street Light Fund for the payment of the amount allowed was regular. Let the writ issue as prayed for. Myeick, McKee, and Shabpstein, JJ., concurred.