Peckham v. City of Watsonville — 138 Cal. 242

Majority

p. 242

[S. F. No. 2370.

Department One.

December 31, 1902.]

GEORGE W. PECKHAM, Appellant, v. CITY OF WATSONVILLE et al., Respondents.

Headnote

Municipal Corporations—Contract nor Sewer—Suit by Taxpayer to Annul.—A municipal corporation, in the construction of its sewers and in the letting of contracts therefor, may follow the procedure authorized by the act of March 19, 1889, and is not limited to the procedure prescribed by the General Street Improvement Act, and a complaint by a taxpayer to annul a contract for a sewer which merely alleges non-compliance with the requirements of the General Street Improvement Act, does not state a cause of action.

Id.—Pleading "Fraud in Letting Contract.—A general allegation in such complaint that the board of trustees awarded the contract “ corruptly and fraudulently,” without specifying any facts eon

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stituting the fraud, is to be disregarded. Neither does the fact that the contract was not awarded to the lowest bidder of itself indicate fraud, in view of the provisions of the act of 1889.

APPEAL from a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

William B. Hardy, for Appellant.

David F. Maher, J. C. Bates, and Lee & Wycoff, for Respondents.

The city of Watsonville entered into a contract with the firm of Williams, Belser & Co., by which the latter agreed to construct a sewer system for the city for the sum of $12,379. The plaintiff brought the present action on behalf of himself and other taxpayers of the city to have the contract declared null and void. In his complaint he alleges that the board of trustees of the city did not pass any resolution of intention to construct the sewers, describing the work, and did not pass any resolution or ordinance ordering their construction, and failed to comply with many other steps prescribed by the General Street Improvement Act for creating a lien upon property for the cost of the improvement. He also alleges that the board did not before awarding the contract order that any part of the cost should be paid out of the city treasury, and did not determine that the cost should not be assessed upon the abutting property or upon a district. He also alleges that the firm to which the contract was awarded was not the lowest responsible bidder, and that the board in awarding said contract “corruptly and fraudulently conspired to squander and' misappropriate the public funds of said city.”

The appellant is in error in his contention that the method of procedure prescribed by the General Street Improvement Act for the construction of a sewer in a municipality is exclusive. By the act of March 19, 1889, (Stats. 1889, p. 399,) authority is given to any municipal corporation to issue bonds for the construction of sewers, and section 10 of that act provides the method to be observed in letting contracts therefor. (See Redondo Beach v. Cate, 136 Cal. 146 .) As the com

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plaint does not allege that the board of trustees did not follow the method of procedure here indicated, it fails to show that the contract was unauthorized.

The allegation of fraud on the part of the board of trustees does not set forth any facts constituting the fraud, and is to be disregarded. The fact that the contract was not awarded to the lowest bidder does not of itself indicate fraud. By the act of 1889 the board was authorized to reject any bid, and there may have been a sufficient showing before it that none of the other bidders than the one to whom the contract was awarded was a responsible bidder.

The judgment is affirmed.

Van Dyke, J.. and Garoutte, J., concurred.

Cases cited

City of Redondo Beach v. Cate 136 Cal. 146 Cal. 1902-03-25 p. 243