Nor does the fact that the forbidden contract would be more advantageous to the public entity than others might be have any bearing upon the question of its validity. ( Capron v. Hitchcock (1893) 98 Cal. 427 [33 P. 431].) (9) Moreover, California courts have consistently held that the public officer cannot escape liability for a section 1090 violation merely by abstaining from voting or participating in discussions or negotiations.
It would therefore appear, in the absence of an explanatory answer, that the payment of one hundred and twenty-five dollars for the rental of a surveying outfit belonging to the street superintendent of the city and rented by him to the city was an illegal payment, as was also the payment to the law partnership of Netherton Torchiana of the sum of one thousand dollars for legal services to be rendered by them, when at the time of the entering into the contract and the time of the payment of the money W.P. Netherton, one of this law partnership, was a duly elected, qualified, and acting member of the board of education of the city. (Capron v. Hitchcock, 98 Cal. 427, [33 P. 431]; Capital G. Co. v. Young, 109 Cal. 140, [29 L.R.A. 463, 41 P. 869].) It is not an answer to this showing of the illegality of the payments to say, as respondents do, that section six of the charter authorized them to acquire and hold and lease and use all kinds of property for the benefit of the municipality, and that section 125 of the charter empowers the city council to employ other attorneys to take charge of or to assist the city attorney in any litigation.
" On the part of respondents it is insisted that they were not required to appeal to the board of trustees for the correction of the assessment; that as no work at all was done under the contract the assessment was void, and there was nothing in the unauthorized act of the superintendent in issuing it which could be corrected or remedied by the board of trustees if the plaintiffs had taken an appeal to the board, and rely upon such cases as Manning v. Den, 90 Cal. 610, [27 P. 435]; Capron v. Hitchcock, 98 Cal. 427, [33 P. 431]; Frick v. Morford, 87 Cal. 576, [25 P. 764]; Warren v. Chandos, 115 Cal. 382, [47 P. 132]; Chase v. Treasurer of Los Angeles etc., 122 Cal. 544, [55 P. 414]. There is nothing in the point made, nor do the authorities relied on support it.
The order of the board, and the assessment based thereon, were therefore void. (Capron v. Hitchcock, 98 Cal. 430, and cases cited; Ryan v. Altschul, 103 Cal. 176, and cases cited.) Nor, as is claimed by appellant's counsel, was the lack of power of the board of supervisors to make the order supplied, or the assessment validated, by the failure of the defendants to avail themselves of the "petition of remonstrance" or "appeal," provided by sections 3 and 11 of the act, respectively.
As the council did not award the contract to the lowest responsible bidder, its action, and the assessment based thereon, were void, and the failure to appeal did not validate such void action or assessment. (Capron v. Hitchcock , 98 Cal. 428; Manning v. Den , 90 Cal. 616.) The contract for the work was invalid because of the omissions therein of matters essential to make it a valid contract under the statute, and because there is no allegation in the complaint that such contract contained such essential matters.
The intention to do so must be unmistakable, or there must be a direct statutory enactment to accomplish that result. [1] In substance, it has been decided by our supreme court many times that in order for a subsequent act to repeal a former, it should appear from the last act that it was intended to take the place of or to repeal the former, or that the two acts are so inconsistent that force and effect cannot be given to both. ( In the Matter of Yick Wo, 68 Cal. 304 [58 Am. Rep. 12, 9 P. 139], and cases there cited; Christy v. Board of Supervisors, 39 Cal. 10; Capron v. Hitchcock, 98 Cal. 432 [33 P. 431].) The principle applicable herein is covered in the case of Bateman v. Colgan, 111 Cal. 586 [44 P. 238], where the court says, "it is an established rule that the law does not favor a repeal by implication, but that, where there are two provisions relating to the same subject matter, they must, if possible, be construed so as to maintain the integrity of both.
"The general rule is that where a contract is expressly prohibited by law, and the statute in terms declares the contract to be null and void, no recovery can be had under it and that a taxpayer has a right to maintain an action to recover back money illegally paid when its officers neglect or refuse to perform their duty in that respect. Capron v. Hitchcock, 98 Cal. 427, 33 P. 431; West v. Berry, 98 Ga. 402, 25 S.E. 508; Dwight v. Palmer, 74 Ill. 295; Winchester v. Frazer (Ky.), 43 S.W. 453; O'Neil v. Flannagan, 98 Me. 426, 57 A. 591; Stone v. Bevans, 88 Minn. 128, 29 N.W. 520, 97 Am. St. Rep. 506; Milford v. Milford Water Co., 124 Pa. 610, 17 A. 185, 3 L.R.A. 122."
But to do this it should appear from the last act (and section 3819 was passed subsequently to section 3804) that it was intended to take the place of or repeal the former, or that the two acts are so inconsistent that effect cannot be given to both. (Capron v. Hitchcock, 98 Cal. 427.) This cannot be said of the section in question.
In order for a subsequent act to repeal a former, it should appear from the later act that it was intended to take the place of or repeal the former, or that the two acts are so inconsistent that force and effect cannot be given to both. (Capron v. Hitchcock, 98 Cal. 427; Matter of Yick Wo, 68 Cal. 304;Christy v. Board of Supervisorsof Sacramento County, 39 Cal. 10.) It seems to have become apparent that a literal construction of the act of 1893 would cover cases not contemplated, and lead to the absurdities pointed out, and therefore said act was superseded by the passage of another act by the legislature in 1897 (Stats. 1897, p. 135), relating to the same subject.
It would require language of unmistakable meaning, or a direct statutory enactment, to accomplish a repeal. (Capron v. Hitchcock, 98 Cal. 427. ) 82 Am. St. Rep. 361.