Opinion
Department Two
Appeal from a judgment of the Superior Court of the county of Alameda, and from an order denying a new trial.
COUNSEL:
J. H. Brewer, and A. L. Rhodes, for Appellants, cited Const. of 1879, art. 11, sec. 19; art. 30, sec. 1; Stats. 1863-64, p. 335; maxim, Expressio unius est exclusio alterius; Cooley on Taxation, pp. 418, 464; Dillon on Municipal Corporations, sec. 55, and notes; Alameda Macadamizing Co. v. Williams , 70 Cal. 534; Taylor v. Palmer , 31 Cal. 246; Turney v. Dougherty , 53 Cal. 620.
J. C. Martin, and C. T. H. Palmer, for Respondent.
The new constitution did not affect the contract made before it took effect. The contract was to be pursued throughout under the sole purview of the law which entered into it at the time of its making. (Mechanics' etc. Bank v. Thomas, 18 How. 384; White v. Hort, 13 Wall. 647; Pomeroy's Constitutional Law, sec. 594; People's Savings Bank v. Tripp, 13 R.I. 622; 2 Story on Constitution, sec. 1384; Robinson v. Magee , 9 Cal. 84; 70 Am. Dec. 638; People v. Bond , 10 Cal. 570-572; Creighton v. Pragg , 21 Cal. 119; Houston v. McKenna , 22 Cal. 554; Dyer v. Pixley , 44 Cal. 153; McCauley v. Brooks , 16 Cal. 31.) The council and marshal have full authority over the extension of time. (Conlin v. Seamen , 22 Cal. 549; Houston v. McKenna , 22 Cal. 553.)
JUDGES: McFarland, J. Thornton, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
This is an action brought by a contractor to enforce a lien for street work done in the city of Oakland. Judgment went for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.
The contract was entered into between the plaintiff and the city marshal in December, 1879. A time for the completion of the work was mentioned in the contract. This time was extended (or attempted to be extended) twice during the year 1880 by the city council and marshal. The work was completed within the time as extended, but not within the time originally mentioned in the contract. Appellants' main contentions are: 1. That after January 1, 1880, when the new constitution went into full effect, there was no power in the city, or any of its officers, to extend the time for the completion of street work; 2. That under the city charter itself neither the city council nor marshal, nor both, had power to grant such extension; and 3. That no such extension was ever actually given.
1. As the contract was made before January, 1880, it was not impaired or affected by the new constitution. The granting of the extension of time was not a novation or new contract; it was merely a pursuance of the original contract under rights existing by virtue of the law under which it was made. The extensions were made before the original time, or the time given in the first extension, had elapsed. The case of German Savings Bank v. County of Franklin , 128 U.S. 526, cited by appellants, differs in many respects from the case at bar.
2. The contention that the charter gives no power to extend the time for the completion of a contract rests (in addition to the claim that Conlin v. Seamen , 22 Cal. 547, and Houston v. McKenna , 22 Cal. 551, were wrongly decided) on the attempted application of the maxim, Expressio unius, etc., to the latter clause of the first sentence of section 6 of the Oakland street law. (Stats. of 1863-64, p. 333.) Said clause is as follows: "Said marshal shall fix the time for the commencement of the work under all contracts entered into by him, which work shall be prosecuted with due diligence from day to day thereafter to completion, and may extend the time so fixed, from time to time, under the direction of the city council." It is argued that the words "so fixed" refer only to "commencement"; and that, as the power to extend the time for the commencement of the work is expressed, therefore the power to extend its completion must be held to be excluded. But, in the first place, it is not entirely clear that the construction contended for is the correct one. It would, no doubt, be the strict grammatical construction; but the language undoubtedly leaves the impression that the law-maker, when using it, had the intent to do something more than to merely give power to extend the commencement of the work. If that had been his sole purpose, the words concerning the extension of time would naturally have immediately followed those about the commencement of the work; whereas they are placed after the clause requiring the prosecution of the work with due diligence from day to day thereafter to completion .
The last two lines of the sentence seem to contemplate a condition of things existing after the work had been commenced, and a time when it would be folly to speak of extending the "commencement" of that work. At all events, the true construction of the clause is so doubtful that if the power to extend the completion of the work can be fairly gathered from other parts of the statute, then it would be straining a rule beyond its breaking point to hold such power to be excluded by said clause by virtue of the said maxim invoked by appellants. And we think that the power to extend the time for the completion is clearly given in other parts of the statute. It is to be observed that the statute does not provide that there shall be inserted in the contract any stated time for the completion of the work. The provision is merely that the work "shall be prosecuted with due diligence from day to day thereafter to completion," and must be done "under the direction and to the satisfaction of the marshal." (Sec. 6.) The marshal, therefore (at least with the concurrence of the council), had full control of the time within which the work should be completed. He need not have inserted in the contract any definite time at all for the completion of the work. And to say that this power did not include the power to extend the time when he had inserted a definite period, [21 P. 545] is to say that the greater does not include the less. Throughout the statute the council and marshal are given the most plenary general powers over all matters relating to street work; and it is expressly provided that "the marshal of said city is hereby authorized in his official capacity to make all written contracts, and receive all bonds authorized by this act, and to do any other act, either expressed or implied, that pertains to the street department under this act." (Sec. 6.) Moreover, the general power to extend the time for the completion of the work was settled and declared in the two cases of Conlin v. Seamen, and Houston v. McKenna, above noted. The statutory provisions before the court in those cases (with respect to the point under discussion) were almost identical with those of the Oakland street law, except that they did not include the clause above quoted about the extension of time.
3. The third contention of appellants is that the resolutions adopted by the council, and the indorsements made on the contract by the marshal, do not contain sufficiently apt language to create extensions of the time to complete the work. We think, however, that this view is over-critical, and that the language used clearly expresses the intention to grant the extensions, and is amply sufficient to work that result. We do not see anything more in the points made that requires special notice.
Judgment and order affirmed.