68 Cal.App. 592, Civ. 2902, Stockton Plumbing and Supply Company (A Corporation) v. Wheeler

Docket Nº:Civ. 2902
Citation:68 Cal.App. 592, 229 P. 1020
Opinion Judge:HART, Judge
Party Name:STOCKTON PLUMBING AND SUPPLY COMPANY (a Corporation), Petitioner, v. RAYMOND J. WHEELER, as Mayor, etc., et al., Respondents
Attorney:A. P. Hayne and Nutter, Hancock & Rutherford for Appellant. J. LeRoy Johnson, City Attorney, and Clarence A. Grant, Assistant City Attorney, for Respondents.
Judge Panel:JUDGES: HART, J. Finch, P. J., and Plummer, J., concurred. Finch, P. J., and Plummer, J., concurred.
Case Date:September 10, 1924
Court:California Court of Appeals
 
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Page 592

68 Cal.App. 592

229 P. 1020

STOCKTON PLUMBING AND SUPPLY COMPANY (a Corporation), Petitioner,

v.

RAYMOND J. WHEELER, as Mayor, etc., et al., Respondents

Civ. No. 2902

Court of Appeals of California, Third District

September 10, 1924

Page 593

PROCEEDING in Mandamus to compel certain officers of the City of Stockton to make and execute a contract for municipal work.

Writ denied.

COUNSEL:

A. P. Hayne and Nutter, Hancock & Rutherford for Appellant.

J. LeRoy Johnson, City Attorney, and Clarence A. Grant, Assistant City Attorney, for Respondents.

JUDGES: HART, J. Finch, P. J., and Plummer, J., concurred.

OPINION

HART, Judge

Page 594

[229 P. 1021] This is an original application for a writ of mandate to compel the respondents, as mayor and city clerk, respectively, of the city of Stockton, a municipal corporation, to make and execute a contract awarded to the petitioner by the governing board of said city for the performance of the plumbing, heating, and ventilating work in and upon a public building of said city, known as and intended for a memorial civic auditorium.

Page 595

The petition contains a detailed statement of the facts of the transaction and thus shows that all the legal requisites of the awarding of such a contract were observed. It is alleged that the respondent mayor has refused and still refuses to sign the written contract signed and submitted to him by the petitioner, and that, as a consequence, the city clerk has not attested the execution of the same by the said mayor. The respondents have demurred to the petition on the general ground and thus admit the truth of all the essential facts stated in the petition for the writ herein asked for.

The facts of the transaction may thus be stated: Sealed bids for the work referred to having been previously advertised for by the city council, the petitioner on the ninth day of July, 1924, filed with the respondent clerk its bid wherein it proposed to do the said work according to the requirements of the specifications for a stated amount or sum of money. Subsequently, the city council regularly and duly opened all the duly filed bids or proposals for the performance of said work, examined the same and found and determined that petitioner's was the lowest responsible bid, and, accordingly, regularly awarded the contract for the doing of the work to the petitioner in accordance with its proposal. Thereafter, and within due time, a written contract founded upon the award was prepared by the city through its proper officer, the petitioner signed the same and also filed with the city auditor the required bond. At the time of the making of the award, and for over a year prior thereto, one John Charlesworth was employed by and performed for the petitioner services as sheet metal foreman of its establishment; [229 P. 1022] that during all said period of time, including the time at which said award was made, said Charlesworth was a member of the city council of said city of Stockton, the governing board thereof.

It is admitted, as it is alleged in the petition, that said Charlesworth was a member of the " Building Committee" of the city council, which committee supervised a revision of the plans for said auditorium building, said plans as so revised being approved by the council, but that he was not present at the meeting of the council at which the award of the contract was made.

Page 596

The foregoing statement of the facts is sufficient for the purposes of the decision herein.

The vital question submitted here is whether, in view of certain provisions of the charter of the city of Stockton, the act of the city council in awarding the contract in question to the petitioner was and is absolutely void or merely voidable. The respondents claim (and upon that ground the respondent mayor based his refusal to execute the contract on behalf of the city) that the award was void ab initio, for the reason that, as they contend, when the same was made the said Charlesworth was a member of the city council and at the same time an employee of the petitioner and as such interested in the contract awarded, contrary to the inhibitions of the city charter with respect to such a situation. Per contra, the petitioner maintains that, under the provisions of the charter referred to, the act of awarding the contract was voidable only. In other words, the petitioner's position is that it was wholly optional with or in the discretion of the city council to determine and declare the award to be void and that the council having failed to declare the award to be void, but proceeded to act thereon, the same must be deemed to be accepted as perfectly valid. It is further contended by the petitioner that, in any event, said Charlesworth was not interested in the contract within the meaning or contemplation of the charter provisions.

So much of the provisions of the city charter as are pertinent to the consideration of the problem thus propounded reads as follows:

Art. VI, sec. 2. " No member of the City Council shall be interested in the profits or emoluments of any contract, job, work, or service for the municipality. Any member who shall cease to possess any of the...

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