119 P. 677 | Cal. Ct. App. | 1911
Lead Opinion
It appears from the petition that Long Beach is, and was at all times mentioned in the petition, a charter city; that in February of 1910 the council of such city duly adopted resolutions determining that the public interest and necessity demanded the acquisition, construction and completion by the city of the following named public improvements: First, the acquisition, construction and completion of certain repairs upon a double-deck, cylinder pier belonging to the city; and second, the acquisition, construction and completion of a new pier one thousand feet in length at a point designated in said city; that at a subsequent meeting of the council an ordinance was duly adopted giving notice of a special election to be held in said city, submitting to *292 the qualified voters the proposition of incurring an indebtedness in the amount of 75,000 for the first and $50,000 for the second improvement named, and further that both of the issues did not exceed fifteen per cent of the assessed value of the real and personal property in said city, and that the cost of the acquisition, construction and completion of said public improvements is and will be too great to be paid out of the ordinary annual income and revenue of said municipality; that by said ordinance it was further provided that bonds be issued for each of the said improvements, one-fortieth of the principal and the interest at the specified rate to be paid annually, and providing further for a tax levy to meet such payments, and further providing for all of the matters provided by the charter or by the general law for the holding of an election pursuant to such ordinance. It is further made to appear that, with reference to the first-mentioned improvement, more than two-thirds of the electors voting at said election voted yes; that as to the second proposition less than two-thirds of those voting at such election, but more than two-thirds of those voting upon the proposition, voted yes; that the first levy necessary for the annual payment of the principal and interest upon the bonds has been made and collected without protest by the taxpayers; that subsequent to the passage of the ordinance, another ordinance was passed providing for the issuance of city bonds to cover the amount so voted at such election, that the city clerk refuses to attest said bonds and declines so to do, and this writ is sought to compel the attestation thereof.
Section 3 of the charter of the city of Long Beach, defining the general powers of the city, contains twenty-eight subdivisions. In the eighth subdivision thereof, with reference to supplying the city and its inhabitants with water and gas, electricity, conduits or railroads, or with either, it is provided that bonds may be issued for the acquisition of such public improvements, and that two-thirds of the votes cast on the question of such issue of bonds, if in the affirmative, shall be sufficient. Subsequently, in the eleventh subdivision the power to construct and keep in repair wharves and piers is provided for, no reference being there made as to issue of bonds, or the number of votes requisite in the event of the *293
issuance of bonds therefor. In section 21, article XI, of the charter it is provided: "Whenever the council shall determine that the public necessity requires the construction, or acquisition, or completion of any permanent municipal building, . . . or other public improvement or utility, the cost of which, in addition to the other expenditures of the city, will exceed the income and revenue provided for in any one year, they may, by ordinance, submit a proposition to incur a debt for that purpose, and proceed therein as provided in section 18, article XI, of the constitution of this state, and general law or laws thereof." The general law of the state (Stats. 1901, p. 27), section 3, provides: ". . . It shall require the votes of two-thirds of all the voters voting at such special election to authorize the issuance of the bonds herein provided." This section has received a construction by the supreme court of this state in the case of Law v. SanFrancisco,
As to the first proposition involving the issuance of bonds in the amount of $75,000 for the completion and repairs of an existing wharf, it is urged by respondent that such improvement being a municipal affair, the provisions of the charter with reference thereto are controlling, and that it is not within the province of the legislature to legalize, through the curative act before mentioned, a bond issue not authorized by the charter. With this we agree. It is well-settled law that a curative act, to be effective, must be with reference to proceedings which the legislature might in the first instance regulate and control. The charter in this instance has treated fully of the power of the corporation to issue bonds in connection with the wharves of the city, and of the conditions and emergencies controlling the issuance thereof. This being a municipal affair, the provisions of the charter must control, and unless such charter provisions authorize the issuance of bonds for such purposes the legislature may not legalize bonds which are violative of the provisions of the charter. This leads us, then, to determine whether or not, under the charter, authority is given for the issuance of bonds to complete repairs upon wharves of the city. It is insisted by respondent that section 21 of the charter, authorizing the acquisition, construction or completion of any permanent public building, or other public improvement, and the issuance of bonds therefor, does not comprehend repairs incident to such improvements, and it affirmatively appearing that this bond issue of $75,000 was sought for the purpose of completing repairs only, no authority is conferred by section 21 to issue bonds therefor, but that the funds requisite for such repairs must be realized from a general *295
tax levy. While the general power to repair municipal public property is conferred by the charter, the power to issue bonds for the cost thereof is not so expressly conferred. "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied." (Hyatt v. Williams,
Peremptory writ denied.
Concurrence Opinion
We concur in the judgment and in all that is said by the presiding justice referring to the bonds proposed to be issued to secure money with which to build a new pier, i. e., the $50,000 issue. As to the bond issue proposed to be made for the purpose of securing $75,000 to cover cost of repairs on the pier already constructed by the city of Long Beach, we are of the opinion that the provisions of the charter do not expressly, or by any reasonable implication, authorize the municipality to issue bonds for such a purpose; and that any necessity which may render the making of such repairs imperative is immaterial and cannot be considered. Where it is provided that a bonded indebtedness may be created for specified purposes the permission and authority so given is exclusive of every purpose not expressly so named. The municipality of Long Beach may lawfully issue bonds to obtain funds with which to construct a wharf or pier, but when such wharf or pier is once constructed the cost of maintenance thereof and repairs thereon must be paid from the ordinary revenue of the city, which is the revenue obtained by the exercise of the power to raise funds for general municipal purposes by annual tax levy within the maximum rate fixed by law as the limit of such levy. *297