Earl v. Bowen (146 Cal. 754, 1905)

CHIPMAN, C.

Action to restrain the defendant officers of the city of Los Angeles from giving out public printing and advertising to defendant, the Times-Mirror Company, under a contract between that company and the city. Demurrers to the complaint were interposed for insufficiency of facts and because of uncertainty and ambiguity in the complaint and that plaintiff has not legal capacity to bring the action. The demurrers were sustained, and plaintiff declining to amend, judgment passed for defendants, from which plaintiff appeals.

Briefly stated, the complaint shows: That prior to May 31, 1904, the city council, without passing any ordinance on the subject, secured bids from various newspapers for the city printing for the year commencing June 8, 1904, and received, among others, a bid from the Times-Mirror Company; on May 31, 1904, the council duly and regularly adopted the following resolution, two thirds of the council voting therefor: “Mr. Davenport moves that the bid of the Times-Mirror Company at sixty cents per inch for publishing the city advertising be accepted, and the city attorney be instructed to prepare and present the necessary contract and bond with the said Times-Mirror Company, and that the city clerk be instructed to sign the same for and on behalf of the city.” The city attorney prepared the draft of the contract involved, without further action of the council, and on June 6, 1904, “indorsed thereon in writing his approval of said draft as to form,” and thereafter, on the same day, the city clerk signed the contract as follows: “City of Los Angeles, by H. J. Lelande, City Clerk,” and the Times-Mirror Company also signed it, and thereafter on the same day the city attorney presented the contract and tjond to the council, and by a vote of six of its members the i council approved the bond and contract. No further action was taken by the council or by the clerk or by any other officer of the city with reference to the execution of the contract. It was further alleged that city printing has been given out under this contract, and will, unless an injunction issues, continue to be given out, thus creating pretended claims against the city, resulting in a misappropriation of public moneys or necessitating expense and multiplicity of action to defend against them, all to the irreparable injury of plaintiff and the other taxpayers of the city.

The only points discussed in the briefs arise on the general demurr-er; questions arising on other grounds of the demurrer are therefore deemed waived.

Plaintiff’s contention is that the contract is invalid: 1. Because all powers conferred by its charter upon the city must, in the absence of an express exception, be exercised by ordinance; 2. Because by the express terms of the charter all “legislative power of the city” must be exercised by ordinance, and the power to make a contract of this character is a “legislative” power; 3. Bedause the charter prescribes certain formalities in the mode