Blum v. City and County of San Francisco

• Decision Date: 23 February 1962
• Citation: 19 Cal.Rptr. 574,200 Cal.App.2d 639
• Court: California Court of Appeals Court of Appeals
• Parties: Robert BLUM, H. J. Burkhart, Florence Henderson, Vivian Swent, Dr. Thomas G. Hall, and John Alcorn, on behalf of themselves and all other taxpayers of the City and County of San Francisco, State of California, Plaintiffs, Cross-Defendants and Respondents, v. The CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, John J. Goodwin, as Treasurer of said city and county, and Harry D. Ross, as Controller of said city and county, Defendants, Cross-Defendants and Respondents, and James M. Smith, William J. Smith, and Robert L. Smith, copartners doing business under the firm name and style of Eaton & Smith, Defendants, Cross-Complainants and Appellants. Civ. 19497.

Page 574

19 Cal.Rptr. 574

200 Cal.App.2d 639

Robert BLUM, H. J. Burkhart, Florence Henderson, Vivian Swent, Dr. Thomas G. Hall, and John Alcorn, on behalf of themselves and all other taxpayers of the City and County of San Francisco, State of California, Plaintiffs, Cross-Defendants and Respondents, v. The CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, John J. Goodwin, as Treasurer of said city and county, and Harry D. Ross, as Controller of said city and county, Defendants, Cross-Defendants and Respondents and James M. Smith, William J. Smith, and Robert L. Smith, copartners doing business under the firm name and style of Eaton & Smith, Defendants, Cross-Complainants and Appellants.

Civ. 19497.

District Court of Appeal, First District, Division 1, California.

Feb. 23, 1962.

Lowenthal & Lowenthal, San Francisco, for Robert Blum, H. J. Burkhart, Florence Henderson, Vivian Swent, Dr. Thomas G. Hall and John Alcorn on behalf of taxpayers.

Dion R. Holm, City Atty. of the City and County of San Francisco, Thomas M. O'Connor, Public Utilities Counsel of the City and County of San Francisco, Robert M. Desky, McMorris M. Dow, Deputy City Attys., San Francisco, for City and County of San Francisco, John J. Goodwin, and Harry D. Ross.

Sylvester Andriano, Ferrari & Ferrari, Louis Ferrari, Jr., San Francisco, for James M. Smith, William J. Smith and Robert L. Smith, dba Eaton & Smith.

BRAY, Presiding Justice.

Defendants and cross-complainants, Eaton & Smith, appeal from that portion of the judgment which provided that its recovery from defendant and cross-defendant City and County of San Francisco (hereafter referred to as the City) be without interest for any period prior to judgment.

QUESTIONS PRESENTED.

1. Does section 3287, Civil Code, apply to the City and County of San Francisco?

2. Is there any other issue on this appeal?

RECORD.

This is a phase of the litigation resulting from the removal of certain cable car lines in San Francisco. In 1948 section 119.3 was added to the San Francisco Charter. Its effect was to prevent the abandonment or removal of the existing cable car lines, which were owned by the City and operated by its Municipal Railway. In 1954 the voters adopted proposition E which was ratified by the Legislature in 1955. This amended section 119.3 and unfroze the Washington-Jackson Street cable car line west of Hyde Street, removing its charter protection against the abandonment or discontinuance thereof by the City's Public Utilities Commission under charter section 132.1. In September, 1956, service on the above mentioned portion of this line was discontinued. Bids for removal of the tracks were requested. Eaton & Smith was the successful bidder, and in January, 1957, a contract was entered into between Eaton & Smith and the City for the removal of the tracks and the repair of the street. The work commenced February 11. However, the same day, plaintiffs, taxpayers, brought this representative suit against the City, certain of its officials, and Eaton & Smith to restrain the removal of the tracks and the operation of the contract. A temporary restraining order was issued that day but it was dissolved March 11 and a preliminary injunction was denied. ¹ Work under the contract again commenced March 18. The work was completed July 31. Notice of completion was executed October 30, 1957.

In view of the filing of this action, the City Controller withheld payment to the contractor under the authority of section 85 of the charter. Eaton & Smith thereupon filed a cross-complaint for the value of the work done. The gravamen of plaintiffs' complaint is (1) that the passage of proposition E, the amendment to section 119.3 of the charter, was void because of fraud of certain city officials, and (2) that the Eaton & Smith contract was illegal because the cable car service was never legally abandoned under section 132.1 of the charter. May 25, 1959, after trial, the court filed an interlocutory judgment in mandate. This required the City's Public Utilities Commission to consider the petition of the 'Cable Car Restoration Committee' and decide if service should or should not be restored. The judgment further provided that if the commission decided that service was not to be restored, it was then to follow the procedure outlined in section 132.1 of the charter.

The final judgment herein held that:

1. The amendment to section 119.3 was properly adopted and there was no conduct on the part of the city officials which could invalidate the adoption.

2. The interlocutory judgment in mandate had been fully complied with.

3. The contract between Eaton & Smith and the City was valid and had been ratified, confirmed and approved by action of the City's Public Utilities Commission and its Board of Supervisors.

The judgment awarded Eaton & Smith $201,072.13 'without interest thereon for any period prior to entry of judgment herein.' It is from this latter part of the judgment that Eaton & Smith appeals. Plaintiffs and the City did not appeal.

1. SECTION 3287, CIVIL CODE, APPLIES.

The court's refusal to award interest prior to judgment was based upon its determination that that section prohibited such an award. '[I]n the absence of special statutory authorization, interest cannot be recovered against the state or a municipality.' (Los Angeles Dredging Co. v. Long Beach (1930) 210 Cal. 348, 362, 291 P. 839, 845, 71 A.L.R. 161.)

Section 3287 prior to its amendment in 1955 provided: 'Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt.'

As this section then read it was held not to apply to either cities or counties. (Hopkins v. Contra Costa County (1895) 106 Cal. 566, 572-573, 39 P. 933; Imperiale v. City and County of San Francisco (1954) 128 Cal.App.2d 277, 282-283, 275 P.2d 569; McGuire & Hester v. City, etc., of San Francisco (1952) 113 Cal.App.2d 186, 193-194, 247 P.2d 934.)

In 1955 the Legislature amended section 3287 by adding the following sentence: 'This section is applicable to recovery of damages and interest from any such debtor, including any political subdivision of the State.' (Stats.1955, ch. 1477, § 1; emphasis added.)

If the intent of the Legislature was to alter the above interpretations of the section, it fell short of the mark, for, while counties are political subdivisions of the state, the law is positive that cities are not. This was clearly decided as to section 3287 as amended when the Supreme Court decided Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 466-468, 326 P.2d 484. (See also Anderson v. City of Long Beach (1959) 171 Cal.App.2d 699, 702, 341 P.2d 43.)

Thus, the question is--is the City and County of San Francisco a political subdivision of the state?

The City and plaintiffs say that it is a municipal corporation and not a county or political subdivision of the state. Eaton & Smith says to the contrary. As will hereafter appear, both contentions are right. The City is both a city and a county and has the powers of both. In Kahn v. Sutro (1896) 114 Cal. 316, 46 P. 87, 33 L.R.A. 620, the court said: 'It may therefore be regarded as settled by the decisions of this court that the city and county of San Francisco is a municipal corporation, and, in matters of government, is to be regarded as a city * * * [T]he territory over which that government is exercised is at the same time a county; and for those purposes for which county officers exercise authority not derived from the charter, and disconnected with municipal government, its officers are properly termed 'county officers." (P. 322, 46 P. at page 89.)

In Nicholl v. Koster (1910) 157 Cal. 416, 108 P. 302, the court said: 'The consolidated city and county of San Francisco partakes of the nature of a city and a county. It has the powers and performs the functions of both. The section of the Constitution declaring that municipal charters prevail over general laws in municipal affairs relates solely to cities and towns. It has no application to San Francisco, except in so far as that subdivision of the state possesses and exercises municipal functions and constitutes a city, as distinguished from a county. With respect to the powers and functions of a county exercised by San Francisco, as in any other county of the state, that section has no concern. The power of the Legislature to enact general laws for the government of counties, as such, including San Francisco, remains unaffected and unimpaired by that section. It does not make the charter of San Francisco paramount to such laws as to county affairs.' (P. 420, 108 P. at page 304.)

We said in Madison v. City and County of San Francisco (1951) 106 Cal.App.2d 232, 238, 234 P.2d 995, 1000, 236 P.2d 141, concerning the City and County of San Francisco, 'It thus has and performs the functions of a county and of a city. When acting in respect to a municipal affair it is free of state legislative control but when acting in respect to any other matter it is subject to and controlled by state general laws. The 'functions performed in the particular case determine whether San Francisco is to be viewed as a city or a county.' (San Francisco v. Collins, 216 Cal. 187, 191 .)'

The City's own charter shows that it has the powers of both a city and a county.

'Section 2. * * * The city and county may make and enforce all laws, ordinances and regulations necessary, convenient or incidental to the exercise of all rights and powers in respect to its affairs, officers and employees, and shall have all rights and powers appropriate to a county, a city, and a city and county, subject only to the restrictions and limitations provided in this charter * * *

'Section 3. Where...