Opinion
9-27-1949
HARD v. PLUMAS COUNTY et al. Civ. 7598. Sac. 5976.
Gardiner Johnson & Thomas E. Stanton, Jr., San Francisco, for appellant. Frank H. McAuliffe, Dist. Atty., Quincy, Fred N. Howser, Atty. Gen., McAllister & Johnson and Walter C. Frame, Sacramento, for respondents.
HARD
v.
PLUMAS COUNTY et al.
Sept. 27, 1949.
Hearing Granted Nov. 21, 1949. *
Gardiner Johnson & Thomas E. Stanton, Jr., San Francisco, for appellant.
Frank H. McAuliffe, Dist. Atty., Quincy, Fred N. Howser, Atty. Gen., McAllister & Johnson and Walter C. Frame, Sacramento, for respondents.
THOMPSON, Justice.
Upon rehearing, the opinion of this court which was filed July 26, 1949, 208 P.2d 701, 702, with certain modifications is adopted and rendered as follows:
Chester Hard, a citizen and taxpayer of the County of Plumas, sought an injunction to restrain the Board of Supervisors and other officers from proceeding to repair and resurface three miles of county roadway at a cost in excess of $3,000, under the supervision of a Road Commissioner appointed pursuant to the provisions of Section 2006 of the Streets and Highways Code, Stats. Ex.Sess.1947, ch. 11, sec. 1, p. 3788, for the reason that said commissioner is not a registered civil engineer. The trial court sustained defendants' demurrer to the complaint without leave to amend the pleading, and rendered judgment that plaintiff take nothing by his complaint. From that judgment this appeal was perfected.
The appellant asserts in his opening brief that: 'The sole issue to be decided is whether section 1075 of the Streets and Highways Code authorizes a county board of supervisors to have county road work done under the supervision and direction of an unregistered person appointed as road commissioner pursuant to the proviso to section 2006 of that Code.' (Italics appear in brief.)
The complaint alleges that, on December 2, 1947, the Board of Supervisors of Plumas County, by resolution duly adopted, appointed E. G. McLain Road Commissioner of that county, and determined that he is 'qualified and competent to handle the road and highway work of said county;' that McLain is not a licensed or registered civil engineer; that the cost of the proposed work of repairing and resurfacing three miles of roadway in that county will exceed the sum of $3,000; that, unless restrained, the board of supervisors will purchase materials and perform the work by day labor under the supervision of said road commissioner without first adopting plans and specifications therefor, and without advertising for bids on the contract.
It will be observed that while the complaint alleges that plans and specifications for the proposed repairs were not adopted, and that bids for a contract therefor were not advertised, the appellant relies solely on one stated issue on appeal as to whether such repairs of a roadway in the county may be performed under the supervision of a duly appointed road commissioner who has been determined by the board to be 'qualified and competent to handle the road and highway work of the county', in spite of the fact that he is not a registered and licensed civil engineer. The appellant asserts that it is unlawful to perform such road work except under the supervision of a licensed and registered civil engineer. Streets and Highways Code, sec. 1075.
We assume from the foregoing statement in appellant's brief that he has waived the question as to whether a contract for the road work, which will cost in excess of $3,000 was advertised for bids pursuant to Sections 1071-1073 of said code.
We are of the opinion the statutes of California authorize the board of supervisors of a county to employ a road commissioner to supervise such road work in the county, regardless of whether he may be a licensed and registered civil engineer, provided it is first determined by the board, pursuant to Section 2006 of the code, that he is 'qualified and competent to handle the road and highway work of the county.' The complaint in the present case alleges that was done.
Section 2006, which was adopted in 1947, and pursuant to which the road commissioner in this case was appointed on December 2, 1947, after having been determined by the board to be 'qualified and competent to handle the road and highway work of the county', reads:
'The board of supervisors of each county shall, prior to January 1, 1948, appoint a single road commissioner for all road districts in the county. The road commissioner shall be a registered civil engineer except that an unregistered person may be employed as road commissioner if approved by the board of supervisors as qualified and competent to handle the road and highway work of the county. Nothing herein shall preclude one such person from serving two or more counties. The county surveyor may be appointed, if a registered civil engineer, or if found by the board of supervisors to be properly qualified. The road commissioner shall at all times be under the direction and supervision of the board of supervisors.
'Each county shall furnish evidence to the State Controller that it has complied with the provisions of this section.
'After January 1, 1948, neither the State Controller nor any other state officer shall make any allocations or payments to any county from the Highway Users Tax Fund until such county has complied with the requirements of this section.' (Italics added.)
It will be observed this section of the code requires the appointment of a road commissioner, and notice of compliance therewith to the State Controller before funds may be allocated or payments made from the Highway Users Tax Fund. The statute specifically provides that the road commissioner so appointed may be either a registered civil engineer, or other 'unregistered person.' A clearer authorization to appoint as such road commissioner an unregistered person who is found by the board to be qualified and competent to handle the work could scarcely be expressed. To reinforce that conclusion the statute further provides that a county surveyor may be appointed as such road commissioner, 'if a registered civil engineer,' or 'if found by the board of supervisors to be properly qualified', even though he may not be a licensed or registered civil engineer.
The appellant assumes that Section 1075 of the Streets and Highways Code contains the only authorization for the board of supervisors to perform county road work by day labor, and that it may be done under that section without adopting plans and specifications and without first advertising for a contract for bids therefor. He relies on that section of the code and assumes such work may be done without bids, regardless of the cost therefor, provided only that the county has employed a 'competent engineer' under whose supervision the work is to be performed. That section reads in part:
'In any county employing a competent engineer as road commissioner, the board may have any work upon county highways done under the supervision and direction of such engineer. Such work may be done:
'(a) * * *
'(b) * * *
'(c) By purchasing the material and having the work done by day labor.'
The foregoing section is based on former section 2640 of the Political Code, which specifically provided that where the proposed work or repairs exceeded a cost of $2,000, plans and specifications therefor must be first adopted. The last-mentioned proviso is now required by Sections 1071 to 1074, inclusive, of the Streets and Highways Code, which provide that where the cost exceeds $3,000 the board of supervisors shall adopt plans and specifications and advertise for bids. But if the board determines that the 'bids are too high, and that the work can be done more cheaply by day labor. * * * the board shall reject the bids and order the work to be done by the road commissioners * * *.' Sec. 1073. Or the board may then advertise for new bids. Since it is not an issue in this case, it is unnecessary for us to determine whether the board of supervisors may perform work on public highways, under section 1075 of the Streets and Highways Code, under the supervision of a duly appointed licensed engineer, by 'day labor' without adopting plans and specifications and submitting the proposed work to competitive bidders as provided by sections 1071 to 1074, inclusive, of said code.
In view of our conclusion that the work may be done by the board of supervisors by day labor, independently of Section 1075, it is immaterial whether or not the language of that section which reads, 'In any county employing a competent engineer as road commissioner, the board may have any work upon county highways done under the supervision and direction of such engineer', also includes an unregistered road commissioner who has been found to be qualified and competent. Since Section 1073 authorizes the board to do the work under supervision of the road commissioners by day labor, and Section 2006, adopted in 1947, authorizes the appointment of an unregistered person as such road commissioner when he has been found to be qualified and competent, we conclude that the court properly determined in this case that the complaint fails to state a cause of action in that respect.
The appellant argues that it is contrary to the provisions of Section 6730 of the Business and Professions Code, and unlawful, for a road commissioner to superintend the work on highways or roads if he is not a registered civil engineer because he is thereby practicing civil engineering without a license so to do. That section provides in part: '* * * It is unlawful for any person to practice or offer to practice as a civil engineer in this State, unless such person has been duly registered as required by the provisions of this chapter or specifically exempted therefrom.'
Section 6704 of the last-mentioned code provides that: 'Any person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.'
The articles and chapter of that code respecting civil engineers contain several specific exemptions from the requirment regarding the registration of civil engineers, among which county road commissioners are not mentioned. Architects, surveyors, employees of civil engineers, and certain contractors are specifically exempted from that act. The term 'civil engineer' is defined as 'one who practices or offers to practice civil engineering in any of its branches.' Bus. & Prof. Code, sec. 6701. It is defined in Funk & Wagnall's New College Standard Dictionary as 'A professional engineer trained to design and build roads, bridges, tunnels, harbors, canals, docks, irrigation systems and other public works.' See, also, Bus. & Prof. Code, sec. 6731. We may concede that a road commissioner who is not a registered engineer is not necessarily trained, skilled or scientifically proficient in laying out, designing or constructing roads, bridges, structures or public works. But we do not assume a road commissioner is presumed or expected to perform such scientific work. A road commissioner is a mere employee and under the immediate direction and supervision of the board of supervisors. Sts. & Hy. Code, sec. 2006; Couts v. County of San Diego, 139 Cal.App. 706, 712, 34 P.2d 812. If the board of supervisors proposes to lay out, design or construct public roads, bridges or structures requiring plans and specifications and special scientific knowledge or skill, we assume it is authorized by law to employ engineers, surveyors or other proficient workmen for that purpose. But such employment will in no way conflict with the duties of the road commissioners as prescribed by statute. The policy of authorizing a road commissioner to perform such duties as are prescribed by our statutes is within the province of the legislature. We conclude that the road commissioner of Plumas County, under the circumstances disclosed by the pleadings in this case, is neither practicing nor offering to practice civil engineering, and that he is qualified and competent to perform the duties prescribed by law, regardless of the fact that he is not a registered civil engineer.
Since the question of the regularity of adopting plans and specifications and advertising for a contract for bids for repairing and resurfacing the three miles of roadway in Plumas County is not an issue on this appeal, and we are satisfied the duly appointed and qualified road commissioner is authorized by law to perform the work, the judgment should be affirmed. It is so ordered.
ADAMS, P. J., and PEEK, J., concur. --------------- * Subsequent opinion 220 P.2d 2.