167 P. 390 | Cal. | 1917
The city of Los Angeles was the owner of a plant for the manufacture of Portland cement, located in Kern County, California. It had used the product of its factory in the construction of its waterworks. Thereafter, in 1913, [Stats. 1913, p. 669], the legislature of the state, in its enumeration of the powers of board of supervisors, added a new subdivision to section 4041 of the Political Code (subd. 9a), providing as follows: "To purchase, lease, construct or otherwise acquire, own, operate, manage and control, in any county in the state, cement manufacturing plant; and to sell the products of the same in such manner and upon such terms and conditions as to them shall be deemed proper; provided, that the state of California and municipal or public corporations of the state shall have a preferred right at the same price as the products are offered to private persons to purchase the same; and to purchase, lease, or otherwise acquire real or *779 personal property to be used in connection with such plant;provided, however, that no such plant shall be purchased, leased or otherwise acquired, neither shall said works be constructed on real or personal property purchased or acquired until notice of the intention to make such purchase or construct such works shall have been given for a period of thirty days by publication in a newspaper of general circulation published within the county or, if there be none, then by posting a notice for said period in a conspicuous place in three public places in the county; such notice shall contain a description of the property to be purchased or works to be constructed, a statement of the amount of money to be invested, the terms upon which it is to be invested and the time when the proposition will come before the board of supervisors to be acted upon." Then on July 10, 1915, the city of Los Angeles and the county of Los Angeles, acting under the authority thus conferred, entered into a written contract of lease, whereby the county of Los Angeles took over the operation and control of the city's cement plant located in the county of Kern. The lease contained a number of terms and conditions, some of which will hereinafter demand consideration. For the present it is enough to say that the rental to be paid by the county of Los Angeles to the city of Los Angeles for the use of this cement plant for the first year is twenty-seven thousand five hundred dollars, to be paid in equal monthly installments of $2,291.66 each. In time the city of Los Angeles and its board of public service commissioners made demand upon the auditor of the county of Los Angeles to indorse his approval of the first month's installment of rent payable under this leasehold contract. Upon his refusal so to do this action in mandate was brought, and appellant M.H. Kane, as a citizen and taxpayer of the county, was permitted to intervene therein. The intervener and the auditor filed their general demurrers to the petition. These demurrers were overruled and judgment for petitioners followed. From this judgment the auditor and intervener have taken their appeals.
The first and fundamental proposition urged upon appeal is that the legislative act is itself unconstitutional, in that it clearly and designedly authorizes taxation for a private purpose, whereas under our system of government taxes can be laid only for a public object — one within the purposes for *780
which governments are established. Indisputably, if the legislature has authorized the doing of this thing, its authorization, under all of the authorities, is void. (Dillon on Municipal Corporations, 5th ed., sec. 1351; Loan Assn. v.Topeka,
Such are the opposing views concerning the construction of this law, and to a determination of what in fact the law actually means we are thus brought. Certain phases of the matter may be at once disposed of. The general provision of section 4041 of the Political Code, which circumscribes all grants of power to boards of supervisors within "such limitations and restrictions as are prescribed by law," neither adds to nor detracts from the force and effect of the powers granted. Even if this express language were not used, those powers would still be circumscribed by the limitations and restrictions *781
prescribed by law. It is true that where a municipal corporation is authorized to engage in a work of a public nature, and where the character of that work is like that of purveying water or the production and sale of electric light and power to its inhabitants, it has been held that an excess or surplus beyond the needs of those inhabitants, which may arise in the prudent operation of the public works, may be disposed of to private individuals. (Dillon on Municipal Corporations, 5th ed., sec. 1300; Clark v. City of Los Angeles,
Again, while in construing a legislative enactment a court will enter upon that construction with strong predilection favoring its constitutionality and seek by every legitimate means to put an interpretation upon the law which will confirm its constitutionality, there is a well-defined limit to every court's power in this regard. No court, in its effort to save a law, can properly pervert or destroy its plain meaning, and so make it express that which the legislature itself did not declare. "But the courts cannot go beyond the province of legitimate construction in order to save a statute; and where the meaning is plain, words cannot be read into it or out of it for that purpose." (Lewis' Sutherland on Statutory Construction, sec. 83; Rogers-Ruger Co. v. Murray,
It has been said that to save even a legislative enactment nothing can be read into it nor read out of it. The supreme test of the validity of any such law is not what may have been done under it, not, as here, what the contracting parties may by convention agree to do or not to do under it, but it is whatmay be done under it. (Lewis' Sutherland on Statutory Construction, sec. 107; City of Beatrice v. Wright,
The invalidity of the subdivision of the code section thus declared renders unnecessary any detailed consideration of the contract entered into between the city of Los Angeles and the county of Los Angeles. But in exemplification of the statement above made, that the contracting parties did not in their agreement contemplate that the law designed to limit the manufacture of cement to the county needs, it may be pointed out that by the terms of the lease the county is bound to manufacture a total of one hundred and eighty thousand barrels of cement each year, and this without regard to the county requirements. The county may require much or little, or none at all, but it must manufacture this product and either sell it or suffer tremendous financial loss if it does not do so. Not this alone, but the city, in lieu of the cash rent which the county is to pay for the use of the plant, may exact from the county the manufacture and delivery to it — the city — of cement at an agreed price. The county further agrees to pay a royalty of five and five-sixths cents per barrel on every barrel of cement manufactured. It is also to pay a depreciation charge of eleven thousand dollars a year. The city is to have the right to purchase sixty thousand barrels of cement a year at a price fixed in the lease, without regard to what may be the actual market value of Portland cement at the time the city elects to take it. All of this and much more indicate too plainly to call for discussion the fact that the contracting parties viewed this law as only it can be regarded, and for the reasons given the judgment in favor of these respondents and against the defendant auditor of Los Angeles and against the intervener is reversed and the cause remanded, with directions to the trial court to sustain these appellants' general demurrers to petitioner's complaint.
Henshaw, J., Lorigan, J., Shaw, J., Sloss, J., and Angellotti, C. J., concurred.
Rehearing denied. *785