13 P.2d 921 | Cal. | 1932
THE COURT.
This is a petition by El Dorado Irrigation District for a writ of mandate to compel respondent, its treasurer, to pay a warrant drawn upon the construction fund of the district. Upon the hearing in this matter an order of reference was made and findings of fact were prepared by the referee, Hon. Peter J. Shields, Judge of the superior court. From these findings, the essential undisputed facts appear as follows: Pursuant to section 30 of the California Irrigation Act (2 Deering's Gen. Laws, 1931, p. 1948, Act 3854), the district employed S.J. Norris, an engineer, to prepare plans for irrigation works. Upon the rendition of his report, the board of directors estimated that the sum of $1,300,000 would be necessary to carry out the project. The report and estimate were submitted to the bond certification commission (now the California districts securities commission), composed of the attorney-general, state engineer and superintendent of banks, as required by section 30a of the Irrigation Act. The commission gave its approval, and on January 20, 1927, the board called a special election at which the bonds were voted. Thereafter $600,000 worth of bonds were sold, the proceeds placed in the construction fund, and the money expended.
On December 20, 1928, a supplemental engineering report was submitted by Norris, approved by the directors and by the bond certification commission. This report made certain changes in the original plan of construction embodied in the first report. Thereafter, an additional issue of $350,000 worth of bonds was sold, and construction was continued under the modified plan. Various expenditures were made and obligations were incurred.
On November 25, 1930, an action was commenced by Matthew Murray, a taxpayer of the district, on behalf of himself and other taxpayers, to enjoin further construction, *271 on the ground that the district had no power to change the plans after the bonds had been voted. This action was subsequently dismissed by the plaintiff and a new action was filed, in which a demurrer was sustained and dismissal entered after failure of the plaintiff to amend.
One of the contracts made by the district in carrying out the modified plan was with the Pelton Water Wheel Company. A balance of $403.80 being due under said contract, a claim was presented to and approved by the directors, and a warrant drawn, directing the respondent treasurer to pay the sum. Because of doubts as to the validity of the proceedings, he refused to do so. Because of similar doubts, the general contractor on March 13, 1931, refused to continue performance. There being no litigation then pending by which a speedy determination of the issue could be had, the district sought the remedy by application for mandate to this court. Matthew Murray and John L. Luse, as tax-payers, intervened and filed briefs in opposition to the petition.
The single question which is presented to us is whether the district had the power to use the funds derived from the sale of the bonds in accordance with a plan which differed substantially from that upon which the original estimate was based. It is conceded that changes in minor details are permissible, but as will hereinafter appear, the differences between the original and modified plan are substantial. It should be noted, however, that the record contains no suggestion of fraud, the changes having been made in good faith, in the belief that they were advantageous to the district.
It is contended by interveners that the modified plan is in effect an abandonment of the original project. This is not borne out by the facts. The first engineering report contemplated the purchase of a system of laterals, dam and reservoir of El Dorado Water Corporation; enlargement of the laterals and perfection of a water supply for the city of Placerville; storage of water from the Consumnes River by the construction of a reservoir at Sly Park in Hazel Valley; and construction of an auxiliary dam to increase the stored water. The second report recommended the same purchase of the El Dorado Water Corporation system, the lateral enlargement and the municipal water supply, but *272 postponed the construction of the reservoir at Sly Park and instead provided for the enlargement of a storage reservoir at Weber Creek, included in the system purchased from the water corporation. The changes are considerable, but there is no basis for the conclusion that the Sly Park reservoir has been abandoned and an entirely new development entered upon. The Sly Park and the Weber Creek storage are provided for in both plans, the differences being in the priority of development and the proportion of water to be secured from each.
[1] In considering the authority of the district and its directors, it should be remembered that the legislative power over such districts is plenary, and that they might be formed and permitted to issue bonds without any vote of the electorate at all. There is no constitutional right of residents of such a district to vote on bond issues. (In re Bonds of San JoaquinIrr. Dist.,
[2] A brief examination of the statute and the cases will show that the board had power to make the changes. The most important decision is Board of Directors of Modesto Irr. Dist.
v. Tregea,
[3] It is urged by interveners that the resolution of the board, the notice of the election and the proposition placed upon the ballot incorporated the plan of the first engineering report so as to make any subsequent change a violation of a contract with the electors, and emphasis is also placed upon the publicity given the original report, which was distributed among the voters of the district. It is clear that the publication and distribution of such an informal report cannot be deemed to limit the statutory powers of the board. The electors vote with presumed knowledge of those powers. (Los Angeles Flood ControlDist. v. Wright,
No other points require discussion. The board had the power to proceed under the modified plan, and the obligations incurred thereunder were valid. Respondent's refusal to pay the warrant is therefore unjustified.
It is ordered that a peremptory writ of mandate issue, directing respondent to pay the sum stated in the above-mentioned warrant.