Davis v. City of Santa Ana

• Decision Date: 15 January 1952
• Citation: 239 P.2d 656,108 Cal.App.2d 669
• Court: California Court of Appeals Court of Appeals
• Parties: DAVIS v. CITY OF SANTA ANA et al. Civ. 4420.

Page 656

239 P.2d 656

108 Cal.App.2d 669

DAVIS v. CITY OF SANTA ANA et al.

Civ. 4420.

District Court of Appeal, Fourth District, California.

Jan. 15, 1952.

Hearing Denied March 13, 1952.

Forgy, Reinhaus & Forgy, Santa Ana, Mark A. Soden, Santa Ana, of counsel, for appellant.

Z. B. West, R. M. Crookshank, Harvey, Rimel & Johnston and Jack J. Rimel, Santa Ana, for respondents.

GRIFFIN, Justice.

Plaintiff, on behalf of himself and other taxpayers of the City of Santa Ana, brought this action against the defendants, City of Santa Ana, a municipal corporation of the fifth class, its mayor, councilmen, city clerk and city treasurer (hereinafter referred to as defendant City), and against defendants Paul M. Johnson and associates (hereinafter referred to as the Johnsons) to enjoin the defendant City and defendants Johnson from paying or receiving any money from the City Treasurer under the terms of a contract and supplemental agreement for the disposal of the City trash and garbage, and enjoining the City from selling or transferring to defendants Johnson any equipment used by said City in such operation.

In the second count of the complaint, wherein plaintiff repeats and realleges the allegations set forth in the first count, he asks that the rights of the respective parties be declared.

The complaint sets up the contract (Exhibit A) entered into on November 2, 1950 (a copy of which is incorporated therein by reference) which recites generally that:

'Whereas * * * the City has handled garbage and trash collections within its exterior boundaries as a corporate function and now wishes to relieve itself of said duty by granting to private persons * * * a contract for said collections and,

'Whereas, second parties have filed with the City their bid and proposal in writing to perform said functions for and on behalf of the City, as a private operation upon certain terms and conditions.

'Now, Therefore, * * * it is agreed * * *

'That the City shall grant to the second parties the right, privilege and duty to collect and dispose of all trash and garbage * * * for a period of four (4) years * * *

'That as consideration * * * the City agrees to pay to the second parties ninety cents (90cents) per month for each water meter record * * *

'* * * the second parties shall have the right to sell or otherwise dispose of garbage collected * * *

'The second parties further agree to purchase from the City the equipment now being used by the City in its trash and garbage operations consisting of some ten (10) pieces of rolling stock at the Blue-Book value, or at the valuation set by a board, of appraisal * * *

'That should either party to this agreement fail or refuse to carry out the terms of this contract * * * the other party may cancel the same * * *

'In the event of cancellation of this contract by either party, * * * the City shall have the right to repurchase from the second parties all rolling stock sold to said second parties, still in use, under the same terms and conditions as said rolling stock was sold to second parties.'

On November 6, 1950, a supplemental agreement (Exhibit B) was executed by the parties, modifying the terms of the first agreement to the extent that the City would allow the Johnsons to continue storing the garbage trucks at the City yard at a fixed rate and that they would pay $100 per month to a City employee for accepting complaints regarding failure of garbage collection.

The complaint further alleges that the purported contract was entered into by the City, without notice inviting bids, and that the contract was not let to the lowest responsible bidder after notice; that the contract provides for an expenditure of City funds exceeding $1,000 and that by reason thereof the contract and supplemental agreement were illegal and void; that the City did not comply with a certain specified City ordinance No. 1296, in respect to the sale of the equipment. This ordinance, set forth in the pleadings, provides generally that when a department head determines that there is personal property in his department which has 'no present or prospective use to which the City of Santa Ana may put said property' and is 'surplus', he must report that fact to the City Council. Reports of surplus property must be read at council meetings and the property cannot be sold until the council approves the report and declares the property surplus. The property is not to be sold if another department has a use for the personal property for a City purpose. When the council determines that sufficient surplus has accumulated it shall fix the date for the sale, which shall be at public auction for cash.

It is then alleged that since the City did not comply with the provisions of this ordinance, it had no power to sell the City-owned equipment to the Johnsons, and for this additional reason that portion of the contract relating to the sale was illegal and void.

General demurrers were filed on behalf of all defendants (except two councilmen who were not present and voting when the contracts were authorized) claiming that the complaint did not state a cause of action on either count. These demurrers were overruled. Answers were filed by the demurring defendants in which they denied generally that the contract or subsequent agreement was invalid for the reasons claimed. They set up the official minute entries of the City Council which recited that the mayor and clerk were 'authorized to execute the agreement' dated November 2, 1950, with the Johnsons, as well as the minutes of November 6, 1950, authorizing the mayor and clerk to execute the supplemental agreement. They admitted that these contracts were entered into and executed by the City 'without notice inviting bids' and that the expenditures involved exceeded $1,000. They set out Ordinance No. 1296 in the entirety, admitted the sale of the rolling stock equipment provided for in the contract was not made in accordance with the procedure prescribed in that ordinance; claim that the City was not required to follow such procedure; and that at the time of the execution of the contracts the City did have and still has a 'prospective use' for such equipment. They deny that the contract of sale was void or illegal or in violation of law. As to the second count, they reallege the allegations set forth in their answer to the first count and deny the remaining allegations of that count. The case came on for trial. Three witnesses were sworn on behalf of plaintiff. At the conclusion of plaintiff's case defendants move to strike all of the testimony offered by plaintiff upon the ground that the complaint did not state a cause of action, and moved for a 'judgment of nonsuit' upon the 'ground set forth in sec. 581 Code of Civil Procedure'. The court granted defendant's motion to strike and granted a 'motion for judgment on the pleadings', after stating that defendants had erroneously 'entitled' it 'a motion for a nonsuit'.

The principal question to determine upon this appeal is whether the City was obligated, under secs. 37901-2-3 of the Government Code to advertise and give notice inviting bids to let the contract for disposal of rubbish and garbage to the lowest responsible bidder. Sec. 37902 provides that: 'When the expenditure required for a public project exceeds one thousand dollars ($1000), it shall be contracted for and let to the lowest responsible bidder after notice.' (Italics ours.)

Section 37901 defines a 'public project' as:

'(a) A project for the erection, improvement, and repair of public buildings and works.

'(b) Work in or about streams, bays, water fronts, embankments, or other work for protection against overflow.

'(c) Street or sewer work except maintenance or repair.

'(d) Furnishing supplies or materials for any such project, including maintenance or repair of streets or sewers.'

As will be noted, there is nothing in the section which states that the letting of a contract for the collection of City rubbish and garbage is a 'public project'. Counsel for plaintiff insists that the historical background of these sections indicates that such a contract was intended by the legislature to be classified as a 'public project', and cites Stats.1883, Chap. VI, art. III, sec 777, p. 258. This section contained the marginal note: 'Public work to be contracted for'. It provided in part that: 'In the erection, improvement, and repair of all public buildings and works, in all street and sewer work, and in all work in or about streams, bays, or water fronts, or in or about embankments, or other works for protection against overflow, and in furnishing any supplies or materials for the same, when the expenditure required for the same exceeds the sum of one hundred dollars, the same shall be done by contract, and shall be let to the lowest responsible bidder, after due notice * * *'

Also cited is the amendment to that section in Stats.1915, chap. 663, sec. 1, p. 1304, wherein the amount was increased to $300, and the caption or preamble in that amendment referred to contracts 'for public works' in cities of the fifth class. Also cited is Stats.1941, chap. 741, sec. 2, page 2260, where the amount was raised to $1,000, with a similar preamble in the title. It is therefore argued that when the legislature used the term 'public project' in section 37902, it meant 'public work'; that since the collection of garbage is a governmental function, citing Glass v. City of Fresno, 17 Cal.App.2d 555, 558, 62 P.2d 765; Pittam v. City of Riverside, 128 Cal.App. 57, 62, 16 P.2d 768; 18 Cal.Jur. p. 1096, sec. 345; and 7 McQuillin, Municipal Corporations, 3d Ed. p. 77, sec. 24.242, one can assume that to perform such function constitutes the doing of work, and that the doing of that governmental work, being for a public purpose, it is, as a matter of fact and law, 'a public work'. In this connection plaintiff cites McKim v. Village of South Orange, 133 N.J.L. 470, 44 A.2d...