the power to construct an outfall sewer, involving an aggregate expenditure of more than five hundred dollars, “without letting any contract therefor, in other words, by day's labor, under the authority and control of the city board of public works, purchasing such material as it may require therefor." (Perry v. City of Los Angeles, 157 Cal. 146, [106 Pac. 410].)

[2] The duty to keep in repair and improve its duly accepted streets, or portions thereof, is imposed upon the city and county of San Francisco by the charter. (Sec. 23, c. 2, art. VI.) By subdivision 2, section 1, chapter 2, article II of the charter, the board of supervisors is given general power "to regulate and control for any and every purpose, the use of the streets . . . and sidewalks of the city and county." By section 1, chapter 2, article VI, the same board is "empowered to fix the width and grade thereof, and to order done therein and thereon any and all street work and street improvement under the proceedings" in that chapter described. These proceedings, it may be here noted, are the various steps to be followed by the board of public works and deal entirely with work or improvement the expense whereof is to be assessed according to the nature and character of the work upon the property benefited (subd. 2, sec. 9, c. 2, art. II), and do not, in our judgment apply to the improvement of, or work upon, accepted streets, the entire expense of which must be paid by the city and county.

[3] Application for the doing of any street work, or improvement, however, must, in the first instance, except as otherwise provided in the charter, be made by the proper parties to the board of public works, which may in turn recommend the work to be done. No street work, or improvement of any kind, shall be ordered by the supervisors to be done unless a written recommendation to do the same has been made to them by the board of public works, except that in case an application is made for any work or improvement the expense of which is to be paid by the city and county, and the board of public works shall not approve of the application, and it shall report to the supervisors its reasons for such disapproval, the supervisors may then, after having obtained from the board of public works an estimate of the expense of the work or improvement, by ordi

nance passed by the affirmative vote of not less than fourteen members of the board, order the work done. [4] The board of public works may recommend any improvement the expense of which is to be paid by the city and county, though no application may have been made therefor, and must make, with said recommendation to the supervisors, an estimate of the expense. In such cases the supervisors may order the same done. (Sec. 2, c. 2, art. VI of the charter.)

[5] The expense of all work or improvement done on streets, crossings, and intersections of streets that have been accepted by the city and county, after acceptance of the same, and all repairs and improvements deemed of urgent necessity that may be made upon the public streets, shall be borne and paid for out of the general fund of the city and county. (Section 8 of the chapter and article last mentioned.) The expense of all other street work and improvement, except certain emergency repairs done at the expense of the owner of the property, shall be assessed upon the lots and lands fronting on the street improved, according to the nature and character of the work. (Section 9 of the same chapter and article.)

[6] It seems reasonable to conclude, therefore, starting with the premise we have reached, that the city and county has power to do the work in question; that all that was necessary in the present instance, to legally initiate the proceeding for doing the work, was for the board of public works to recommend to the board of supervisors, and for that board to order, that the work be done; that, so much accomplished, the board of public works, acting for the city and county, was in position to either do the work under contract, or by and through its own organization, purchasing the materials therefor. (Perry v. City of Los Angeles, supra.)

[7] The first step was duly taken. The board of public works in writing made recommendation to the board of supervisors that the work be done. The record fails, however, to furnish evidence that the second requirement was directly performed. The allegation of the complaint, not denied by the answer, is merely that "the said Board of Supervisors did act upon said recommendation of the Board of Public Works by fixing and allowing in its budget for the fiscal year 1917-1918 an item of expenditure (No. 66) in the

amount of thirty thousand ($30,000) dollars for the reconstruction of Mission Street easterly from Fourth street." This allegation is followed by a recital of the fact that "thereafter, and by Resolution No. 14,579, new series, approved July 17, 1917, the said Board of Supervisors did set aside, appropriate and authorize to be expended out of said special budget allowance (No. 66), the sum of thirty thousand ($30,000) dollars" as appears from the copy of the resolution made a part of the complaint, "for the reconstruction of Mission Street easterly from Fourth Street." The trial court found, as before stated, "that the board of supervisors of the city and county did not at any time before the delivery by plaintiff of the said paving material, order, or authorize by ordinance, the board of public works to improve or repair Mission Street, . . . or the laying of the said pavement, or of the said paving material, or the purchase of any materials from plaintiff, except as such authorization" might be found in the recommendation made by the board of public works, and the subsequent action of the supervisors in carrying an item into the annual budget for the estimated cost of the work, and its later action in making direct appropriation of the sums of money needed to defray the expense thereof.

Our conclusion is in harmony with the decision of the lower court, to the effect that these proceedings do not present facts sufficient to warrant a finding that the board of supervisors, in the present case, "ordered" the work of improving Mission Street to be done, or the materials necessary therefor to be purchased at any time prior to the doing of the work or the furnishing of the materials. The socalled ratification ordinance, to which we shall hereinafter refer, in its preamble contains the important admission on the point, when it recites: "Whereas, The Board of Public Works, in view of a necessity, existing for an immediate performance of the said work, and without a formal order. of this Board in that behalf, did by and through its departmental organization" do the particular work, describing it.

Under the provision of the charter, hereinbefore quoted, the board of public works is given authority to do work of the nature involved here "under such ordinances as may from time to time be adopted by the supervisors." The

direction and control of the board of supervisors is, by this direct language of the charter, impressed upon whatever action the board of public works may take in pursuance of the authority granted thereby. That fact seems manifest from even a cursory reading of the section itself. The supreme court has so held. In construing the very broad powers of the board of public works, as related to public. utilities, owned and operated by the city and county, and which power is expressly granted by the section of the charter we are now considering, Mr. Justice Wilbur, speaking for the court in Vale v. Boyle, 179 Cal. 180, [175 Pac. 787], said: "Under the charter provisions concerning public utilities, the city and county of San Francisco, through its board of public works, is acting in a proprietary and not in a governmental capacity, and it may well be assumed that in placing such utilities in charge of the boards of the city, it was contemplated that so far as consistent such board should have the usual powers incidental to the operation of such public utilities, including the power to purchase the necessary supplies and equipment, this power to be exercised under the charter of the city of San Francisco by the board of public works, under such limitations as may from time to time by ordinance be prescribed by the board of supervisors. (Sec. 9, subd. 8, charter, supra.) While it is true that this general consideration alone should not control the express language of section 1, chapter 3, article II, of the charter, if applicable thereto, it aids us in construing such general provisions of the charter concerning the purchase of supplies, etc., to consider that they were adopted for the purpose of regulating the conduct of the board of supervisors of San Francisco, acting in their governmental capacity." The court then held that the charter having given the board of public works "charge, superintendence, and control" of public utilities, in a proprietary capacity, the board was authorized to purchase, in conformity with the ordinance of the board of supervisors, certain automobile buses required, and that the limitations contained in section 1, chapter 3, article II, of the charter, relating to the manner of purchasing supplies, and awarding of contracts in the ordinary case of governmental affairs, did not apply. (Vale v. Boyle, supra.)

As we understand them, in neither of the foregoing decisions does the supreme court go so far as to hold that the charter requirements relating to the purchase of supplies can be dispensed with. In the Vale case Mr. Justice Wilbur lays emphasis upon the fact that, while the authority of the board of public works is derived from the charter, its activities are confined within the scope of such directions by ordinance as the board of supervisors may from time to time adopt, as in that case was actually done. The real point determined in the case of Perry v. Los Angeles, 157 Cal. 146, [106 Pac. 410], as stated by the court in the opinion, was "whether the city may itself do such work without letting any contract therefor, in other words, by day's labor," purchasing such material as it may require. The manner in which the materials for the construction of the outfall sewer were to be purchased was not referred to in the opinion. That question does not appear to have been in issue. The opinion, however, does say, in discussing two sections of the charter of Los Angeles, in substance the same as the provisions contained in the organic instrument of San Francisco, "the charter provisions undoubtedly require that whenever it is proposed to make an agreement for the purchase of certain materials or supplies, for a sum exceeding five hundred dollars, or to make an agreement with another by which he is to furnish such labor for a sum of money exceeding five hundred dollars, a written contract must be let and entered into in the manner prescribed." (Perry v. City of Los Angeles, supra.)

By section 31, chapter 2, article VI, of the charter, the board of public works shall, "from time to time, after it shall have been directed to do so by the supervisors by ordinance, invite proposals for supplying to the city and county such materials as may be required for the repair of the public streets or for any improvement thereof, and such proceedings shall be had in awarding contracts therefor as are in this article provided for awarding other contracts." The proceedings referred to in this section are those set forth in sections 14 to 22, chapter 1, article VI, which, as the lower court found in the present case, were not complied with, in that no sealed proposals calling for competitive. bidding, for furnishing the materials, were advertised for or secured.