Smith v. City of Riverside

• Decision Date: 09 October 1973
• Court: California Court of Appeals Court of Appeals
• Parties: John L. SMITH, etc., et al., Plaintiffs and Appellants, v. CITY OF RIVERSIDE et al., Defendants and Respondents. Civ. 12434.

Page 67

110 Cal.Rptr. 67

34 Cal.App.3d 529

John L. SMITH, etc., et al., Plaintiffs and Appellants, v. CITY OF RIVERSIDE et al., Defendants and Respondents.

Civ. 12434.

Court of Appeal, Fourth District, Division 2, California.

Oct. 9, 1973.

Hearing Denied Dec. 5, 1973.

[34 Cal.App.3d 530] Richman & Garrett, Lionel Richman and Walter C. Appling, Los Angeles, for plaintiffs and appellants.

[34 Cal.App.3d 531] John Woodhead, City Atty., Barbara R. Purvis, Senior Deputy City Atty., and M. Neal Singer, Riverside, for defendants and respondents.

OPINION

TAMURA, Associate Justice.

The City of Riverside is a charter city which operates its own water and electrical utility systems. Pursuant to a charter provision permitting the city council to except projects for the extension or development of city operated public utilities from a general charter requirement of public bidding, ¹ the city council elected to use city employees rather than private contractors to effect construction and installation of certain types of city electrical and water facilities. ² This is an action for declaratory relief and injunction challenging the validity of the city's action on the principal ground it constitutes a violation of Government Code sections 37901 et seq. requiring work on a 'public project' to be contracted for and let to the lowest responsible bidder when the expenditure exceeds $3,500. ³

Plaintiff Smith brought the action as a city taxpayer and as an officer and member of Laborers' International Union of North America, Local No. 1184. The complaint alleges the city constructed water mains and laterals into and within a private shopping center and into and within a private subdivision without complying with Government Code sections 37901 et seq.; unless restrained and enjoined, the city will continue to perform such projects without complying with the Government Code sections; the city's conduct not only constitutes an illegal expenditure of public funds, but deprives members of plaintiff union of work opportunities they otherwise would have if the city let such projects to private contractors pursuant to public bid in accordance with the Government Code. Plaintiffs prayed for a judicial declaration that the City of Riverside is subject to Government Code sections 37901 et seq. and for a decree enjoining it from performing any 'public project' as defined in Government Code section 37901 without complying with sections 37902 et seq.

Following answer by the city, the parties filed a joint pretrial statement in which it was stipulated the matter would be submitted on an agreed statement of facts and that the issues in dispute were: (1) Whether the extension or development of city water mains and electric lines is a 'public project' as defined in Government Code section 37901; (2) if it is a 'public project' as defined in section 37901, whether the provisions of Government Code sections 37902 et seq. are applicable; and (3) whether or not the city should be permanently enjoined from extending or developing its public utilities facilities by city forces when the cost of such projects exceeds $3,500 despite compliance with its charter provisions.

The written stipulation of facts on which the cause was submitted included the following:

Pursuant to a city charter provision, the city council adopted a resolution (fn. 2, Ante) continuing in force its past policy of performing work for the extension of certain types of electrical and water facilities by city work force rather than by contract. The projects performed by city employees are within public streets and easements dedicated to the city.

With respect to electrical facilities, on major projects the structural work is generally contracted but the cabling, especially underground work, is performed by city employees having specialized technical knowledge because general and electrical contractors normally lack the required expertise and because the work must be coordinated with existing city in-service systems.

The city council has authorized use of city forces to install water mains 12 inches in diameter and smaller in street rights of ways in new subdivisions unless the developer elects to have the work performed by a private contractor. Where the developer elects to have the city do the work, the developer is required to advance sufficient sums in the form of 'development fees' to cover the cost of labor and materials. City work forces are used to install water mains in existing streets where the mains are 12 inches and smaller but larger mains are installed by contract.

There is no evidence that the city or its officers have 'unreasonably or wrongfully abused' the charter provisions empowering the city council to except from the charter bidding requirement work involving extension of city operated public utilities facilities. If the city were precluded from using city work forces for extensions of city public utilities facilities in all instances where costs exceed $3,500, approximately 63 city positions would be eliminated. One of the reasons for maintaining the City Public Utilities Department work force is to enable the city to maintain and restore service in emergencies as well as to construct facilities when needed.

The electricity distributed by the city is purchased from Southern California Edison Company and originates from Hoover Dam and generating plants in Los Angeles, San Bernardino, and Orange Counties. Some of the water distributed by the city comes from the Colorado River and in the future some will be Feather River water.

The trial judge concluded that projects for the extension of city water mains and electric lines are not 'public projects' within the meaning of Government Code section 37901; even if such works are construed to be 'public projects' as defined by Government Code section 37901, the city need not comply with the competitive bidding requirements of Government Code sections 37902 et seq. in that the manner of performing work for the extension or development of city-owned public utilities is a 'municipal affair'; since the city charter provides a complete scheme for constructing utility projects and improvements, Government Code sections 37901 et seq., to the extent they are inconsistent with the charter, are inoperative; and the city's action as set forth in the stipulation is not 'ultra vires.' Judgment was rendered for defendant city.

Plaintiffs appeal from the judgment and urge principally that construction of utilities facilities is governed by state statute rather than city charter and that under the Government Code when the work involves an expenditure of more than $3,500, it must be let to the lowest responsible bidder after notice. Defendants' response is two-fold. They urge: (1) The construction activities in question are not 'public projects' within the meaning of Government Code section 37901 and (2) even if they be so construed, the manner of performing such work is a municipal affair and is, therefore, governed exclusively by the city charter. For reasons which follow, we have concluded that the construction of city water and electrical facilities is a municipal affair. We, therefore, need not decide whether such projects come within the meaning of 'public projects' as defined by Government Code section 37901.

A charter city may make and enforce all ordinances and regulations with respect to its municipal affairs, subject only to restrictions and limitations contained in its charter, but with respect to other matters, such as those of statewide concern, it is bound by general laws if it is the intent and purpose of such general laws to occupy the filed to the exclusion of municipal regulation. ⁴ (Bishop v. City of San Jose, 1 Cal.3d 56, 61--62, 81 Cal.Rptr. 465, 460 P.2d 137; Pac. Tel. & Tel. Co. v. City & County of S.F., 51 Cal.2d 766, 768--769, 336 P.2d 514; Pipoly v. Benson, 20 Cal.2d 366, 369--370, 125 P.2d 482.) Whether a subject matter under discussion is of municipal or statewide concern must be judicially determined but no precise definition of the term 'municipal affair' has been formulated by the courts. (Bishop v. City of San Jose, Supra, 1 Cal.3d 56, 62, 81 Cal.Rptr. 465, 460 P.2d 137.) The approach has been largely ad hoc. (Sato, 'Municipal Affairs' in California (1972) 60 Cal.L.Rev. 1055, 1075--1076.)

While the precise question whether a charter city is subject to a general statute requiring projects for the construction of public improvements to be contracted out on competitive bidding has never been squarely decided, it has been held in analogous situations that the mode of contracting for city improvements is a municipal affair. Thus, a statutory requirement for a labor and materials bond for state, municipal or other public works has been held inapplicable to a city whose charter provides a complete scheme for the letting of such contracts and the terms and conditions thereof. (Loop Lumber Co. v. Van Loben Sels., 173 Cal. 228, 232--234, 159 P. 600; Williams v. City of Vallejo, 36 Cal.App. 133, 139--140, 171 P. 834.) In reaching its conclusion, the court in Loop Lumber Co., supra, declared: '. . . That street and sewer work in a municipality, and the making of contracts therefor on the part of the municipality are 'municipal affairs' within the meaning of the constitutional provision cannot be doubted. (Citations.) Especially is this true where the expense of the work is to be borne by the municipality itself, as was the fact in this case. And we do not think it can be seriously questioned that a municipality may provide in its freeholders' charter for a complete scheme for the doing of such work that will be paramount to anything contained in any act of the state legislature, and that in regard to such municipality anything contained in any general law of the state that is inconsistent with the charter provisions must be inoperative.' (Loop Lumber Co. v. Van Loben Sels., Supra, 173 Cal. 228,...