Kennedy v. Ross

The petitioner, Clyde C. Kennedy, seeks the writ of mandate directing the respondent, as Controller of the City and County of San Francisco, to issue a warrant on the city treasurer in the sum of $10,000.

The Director of Public Works of the City and County of San Francisco on September 24, 1945, entered into a written contract with the petitioner, a consulting engineer, whereby the latter, employing and maintaining a staff of professional engineers and operating a chemical and biological testing laboratory in San Francisco, agreed to prepare and furnish engineering and architectural plans, specifications, estimates of cost, and contract documents required for a proposed North Point Sewage and Sludge Treatment and Disposal Plant, and appurtenant works and buildings, to be located in the Islais

On October 30, 1945, the respondent controller certified that he had set aside the sum of $77,000 from the unexpended and unapplied balance in a total appropriation of $1,355,000 to the Department of Public Works for the North Point sewage replacement and construction, to be applied to the expenditure called for by the contract.

On January 26, 1946, the petitioner completed the portion of the plans which called for the payment of $10,000. The director of public works approved the plans and the claim, and a request for the payment of $10,000 was presented to the respondent. In the meantime, in December, 1945, a complaint had been filed against the respondent to restrain him from making any payment under the Kennedy contract on the ground that the contract had not been authorized by the board of supervisors, and that the petitioner had not been exempted by the civil service commission pursuant to certain provisions of the city charter. The respondent refused payment because of the pendency of the injunction suit. Thereupon this proceeding was commenced.

The respondent’s demurrer to the petition constitutes his return to the alternative writ. The allegations of the petition are therefore admitted and only issues of law are presented.

It is conceded by the respondent that if the contract is legal mandamus is the proper remedy. (Puterbaugh v. Wadham, 162 Cal. 611 , 613 [ 123 P. 804 ]; see San Francisco v. Boyd, 17 Cal.2d 606 [ 110 P.2d 1036 ]; Code Civ. Proc., § 1085.) The problems involved have been fully presented by the parties and amici curiae.

It is contended by the respondent and supporting amici curiae that the contract is invalid for failure to comply with section 142(4) of the 1932 Charter of the City and County of San Francisco (Stats. 1931, p. 2973, as amended.) Sections 140 et seq. of the charter establish a civil service commission and civil service employment system. Section 142 requires that all positions in the several departments and

The conclusions of the city attorney and the commission are correct. Section 142 of the charter refers to and includes in the classified civil service “all positions in all departments and offices” of the city, and exempts “persons employed in positions in any department for expert temporary services.” Under the contract, the petitioner was not appointed to nor does he hold a position in any department or office of the city. The contract calls for his expert professional services on other than a permanent basis, but it does not follow that he is thereby employed in a position in any department of the city. The fact is otherwise. No position, temporary or permanent, in any department, was thereby created as contemplated by section 143 of the charter. The petitioner was engaged to do a specific expert professional task for a stated consideration. “Positions” in “departments and offices” of the city connote an employment to render services at a salary paid periodically and are governed by the salary standardization and related provisions of the charter, also invoked by the respondent. (§§ 71, 73,141, 142,150 and 151.)

The provisions of the charter do not foreclose the authorized agency from entering into contracts with individuals for the performance of professional services as independent con

The foregoing conclusion is based on the assumption that the engagement outside the list of eligibles otherwise is legal and that the services for which the petitioner was engaged are not such as could adequately be rendered by an existing department of the city. In State Compensation Ins. Fund. v. Riley, 9 Cal.2d 126 , 131 [ 69 P.2d 985 , 111 A.L.R. 1503 ], this court rejected as a conclusive test of the lawful exercise of the power to make an independent contract that the person involved was an independent contractor. It was held in the Boyd case and recognized in the Rily case that the appropriate agency is empowered in proper cases to engage the services of an expert in a field covered by an existing department without a resulting illegal duplication of the functions and duties of existing officers and departments.

In this proceeding it appears that the sewage disposal problem was of much concern to the people of San Francisco prior to the outbreak of the recent war. The influx of people, with the consequent overcrowding and shortage in housing, greatly overtaxed the already inadequate sewage system. The existing

The city engineer is an appointee of the director of public works and holds office at the pleasure of the latter. He has such power in making surveys, plats and certificates as is given by law to city engineers and to county surveyors, with the same validity, force and effect. (Charter, § 106.) Apart from those duties, the city engineering staff has designed, constructed and supervised the construction of many of the city’s engineering projects, including the Riehmond-Sunset Sewage Treatment Plant, construction of which commenced in 1937. It also appears that the sewage reduction plant which will be a part of the North Point system will be planned by the city engineer. But this is not to say that scientific progress up to the present time, through the period of a second world war, has not developed a specialized technical training for the preparation of plans for modem sewage treatment and disposal which is not available in the existing city engineering staff. If the procurement of such expert services was within the proper sphere of action by the director of public works, it must be concluded on the facts presented that the responsibility rested upon that official and the chief administrative officer to whom he is answerable to determine the qualifications and requirements of the expert who should undertake the preparation of plans and specifications for the proposed improvement. There is no showing of lack of good faith or of arbitrary exercise of the power and discretion vested in the appropriate agency. No ground for interference in the selection of the petitioner to perform such services as an inde

But it is claimed that action by the board of supervisors was necessary to authorize the contract pursuant to an appropriate resolution or ordinance. This contention necessitates an examination of the division of powers among the boards and departments of the city and the nature of the power exercised in the particular case.

By section 2 of the charter the city possesses all rights and powers appropriate to autonomous rule, subject only to the restrictions and limitations expressly included in the charter. That section provides that the specification or enumeration of particular powers shall not be exclusive. A city which has thus availed itself of the 1914 amendment of section 6, article XI, of the Constitution, has full control over its own affairs whether or not the charter specifically provides for the particular power sought to be exercised, so long as the power is constitutionally exercised within the limitations or restrictions placed in the charter; and the mere enumeration of powers conferred does not constitute a limitation or restriction. (West Coast Adv. Co. v. San Francisco, 14 Cal.2d 516 , 521-523 [ 95 P.2d. 138 ].)

It is apparent from the provisions of the new charter that the framers intended to and did formulate a change in the usual concentration of control in the administration of municipal affairs, and thereby provided for a decentralization of powers. Only those powers of the city which are not reserved to the people or delegated to other officials, boards or commissions, are vested in the board of supervisors, to be exercised as provided in the charter. (§9.) That section also provides that the supervisors may, by ordinance, confer on any officer, board or commission such other and additional powers as may be deemed advisable.

The mayor is the chief executive officer (§25), but a chief administrative officer is appointed by him (§ 59), who has the duty to exercise supervision and control over all administrative departments placed under his jurisdiction (§ 60), among which are the Department of Finance and Records, the Purchasing Department, the Real Estate Department, the Department of Public Works, and others (§ 61). Certain other departments, boards and commissions, such as police, fire, library, art, park and recreation, are placed under the jurisdiction of the mayor (§§ 35 et seq.).

Section 95 of the charter relates to “Contracts, Public Works and Purchasing Contracts.” It provides that the construction, reconstruction or repair of public buildings, streets, utilities or other public works or improvements, with exceptions not material here, shall be done by contract. The section also states that “Any public work or improvement executed by the city, other than routine repair work, shall be authorized by the chief administrative officer or by the heads of departments not under the chief administrative officer, only after detailed estimates have been prepared and submitted by the heads of the department concerned. . . . The head of the department in charge of or responsible for the work for which a contract is to be let . . . shall let such contract to the lowest reliable and responsible bidder. . . . The officer responsible for the awarding of any such contract shall require from all bidders information. . . . The department head . . . shall have power to sign such contract. ... If such contract is for any public work or improvement, it shall require the joint approval of the department head and the chief administrative officer relative to departments under his jurisdiction, or the signature of the department head and the approval by resolution of the board or commission concerned for departments not under the chief administrative officer. ’ ’

From the foregoing it is seen that the framers of the charter intended a division or separation of powers as between the board of supervisors, and the executive and administrative heads and departments. To make the matter more explicit, section 22 provides that except for the purpose of inquiry the mayor and the supervisors shall deal with the administrative service for which the chief administrative officer is re

The intention of the framers is emphasized in Francis Y. Keesling’s “San Francisco Charter of 1931” (April, 1933), page 45, where, in reporting the debate of the Freeholders regarding the limitation of the powers of the supervisors it is stated: “It was the definite intention to effectively deprive the Board of Supervisors of all administrative powers.” This is further borne out by the provisions governing the budget and appropriations.

Section 69 et seq. provide for the budget and fiscal procedure. The fiscal year commences on the first day of July. The executive of each department or office of the city is required to prepare an annual budget estimate to be acted on by the board or commission not later than the first of March. The chief administrative officer obtains the budget estimates from the heads of departments subject to his control, and after adjustments or revisions, transmits them to the controller, who in turn submits them to the mayor. Public hearings are held by the mayor and he may make changes within specified limits. Not later than the first of May the mayor is required to transmit a consolidated budget estimate to the board of supervisors, together with a draft of the annual appropriation ordinance based on the proposed budget which is thereupon published as required for ordinances. After public hearing, and between the 15th of May and the first of June, the board of supervisors is required to adopt the budget estimates as submitted or amended and pass the necessary appropriation ordinance. An amended budget is required to be readvertised prior to final passage. Yeto power is given the mayor, and power to act thereon to the supervisors. (§ 72.)

Section 72 then provides: “Subject to the restrictions

The foregoing provisions do not of course authorize an expenditure pursuant to a contract which otherwise is not in compliance with charter requirements. Section 85 permits the controller to withhold approval of any claim on the ground of its illegality, and section 86 subjects him to liability for the amount of a claim illegally approved, allowed or paid. As pointed out in Millholen v. Riley, 211 Cal. 29 [ 293 P. 69 ], the duty to function includes by implication of law the power to properly apply the funds appropriated for the purpose in the absence of provision to the contrary. The provisions of section 72, together with the provisions of the charter vesting sole control for the administration of the functions delegated to the Department of Public Works subject to the authorization of the chief administrative officer, are persuasive that no further control is vested in the supervisors over the expenditure of funds appropriated to that department after the appropriation ordinance has been adopted. All of the budget procedure was duly complied with in the present instance and $1,355,000 was appropriated for sewers including North Point Sewage, Disposal Plant and Outfall. The contract here involved was the first to be entered into looking to the fulfillment of the purposes for which the appropriation was made. There is no question of the validity of the appropriation, and the controller has duly set aside the amount required by the contract from unapplied funds in the appropriation.

The respondent points out that in the case of San Francisco v. Boyd, supra ( 17 Cal.2d 606 ), the contract for the services of the expert was made by the board of supervisors. The subject matter of the contract was, the engagement of an engineering expert to investigate and report to the supervisors

The respondent also relies on section 106 (of. § 112), providing that “All examinations, plans and estimates required by the supervisors in connection with any public improvement, exclusive of those to be made by the public utilities commission, shall be made by the director of public works, and he shall, when requested to do so, furnish information and data for the use of the supervisors.” The respondent would apply those provisions as a limitation upon the power otherwise clearly vested in the director of public works. But properly applied they place additional duties upon the director to perform those things when required or requested by the supervisors so to do. Any intention to curtail the powers otherwise delegated to the director of public works may not be read into that section.

The foregoing sufficiently answers the respondent’s contention that certain sections of the charter and section 4041.34 of the Political Code vest the power in the board of supervisors to authorize the contract for special services, as a residuary power. Section 2 of the charter provides that the exercise of all rights and powers of the city and county when not prescribed in the charter shall be as provided by ordinance or resolution of the board of supervisors. Section 3 provides that where a procedure for exercising any right or power is provided by statute, the statutory procedure shall be followed unless a different procedure is provided in the charter or by

The respondent also contends that although the contract had the approval of the chief administrative officer, as required, nevertheless it is void because the director of public works did not comply with the provisions of section 95 of the charter requiring that all contracts be let to the lowest reliable and responsible bidder. Section 22 provides that the supervisors, and each board or commission concerning the affairs of its own department, shall deal with administrative matters only in the manner provided by the charter. The provisions of section 95 require that the construction, reconstruction, or

It is true, as asserted by the respondent, that the mode prescribed for the exercise of power by a public officer is the measure of the power. (Zottman v. San Francisco, 20 Cal. 96 , 103 [ 81 Am.Dec. 96 ] ; Los Angeles Dredging Co. v. Long Beach, 210 Cal. 348 , 353 [ 291 P. 839 , 71 A.L.R. 161 ].) It is also true that the framers of the charter were at pains to require that contracts for the construction of public works should be subject to competitive bidding, and it is assumed that all contracts for the construction of the improvement will conform to that procedure. But it does not follow that strict compliance with that requirement must be maintained in procuring expert services to furnish plans and specifications for the construction. In Los Angeles Dredging Co. v. Long Beach, supra (210 Cal. at p. 354), it was recognized that there are exceptions to the requirement that contracts must be let under competitive bidding, the court saying: “The first exception is founded on the fact that sometimes it is undesirable or impossible to advertise for bids for particular work. In such cases the statutory requirement is deemed not to apply. In 2 Dillon on Municipal Corporations, 1199, section 802, the law is thus stated: ‘It has been held that where competitive proposals work an incongruity and are unavailing as affecting the final result, or where they do not produce any advantage . . . or it is practically impossible to obtain what is required and observe such forms, a statute requiring competitive bidding does not apply.’ Our courts have approved this doctrine.” In McQuillin on Municipal Corporations, volume 2, second edition revised, page 1182, section 1292, it is stated with citation of cases: “Provisions as to competitive bidding have been held not to apply to contracts for personal services depending upon the peculiar skill or ability of the individual, such as the services of ... an attorney at law, a superintendent or architect ... or a consulting and supervising engineer. And generally the requirement does not apply to the employment of a

No question is raised as to the power of the city under its charter to proceed in the matter of sewage reduction, treatment and disposal (see City of Oakland v. Williams, 15 Cal.2d 542 , at p. 550 [ 103 P.2d 168 ]) and the record shows that since the adoption of the new charter the Department of Public Works, the chief administrative officer, and the board of supervisors have so construed its provisions as not to require that contracts for expert and professional services be subject to the civil service provisions or the procedure of competitive bidding. The practice has been for the director of public works to make such contracts with independent contractors upon the approval of the chief administrative officer and without advertising for bids. There is no language in the charter which may be said to require a different method of procedure.

Prom what has been said it follows that the contract involved is valid and the petitioner is entitled to the relief sought.

Let the peremptory writ issue as prayed.

Gibson, C. J., Edmonds, J., Carter, J., Traynor, J., Sehauer, J., and Spence, J., concurred.