77 P. 1014 | Cal. | 1904
Plaintiff, a taxpayer of the city and county of San Francisco, brought this action to restrain the *386 municipal authorities from issuing any of the $17,771,000 of bonds voted for municipal improvements. This bond issue was declared carried at an election held for the purpose, and the petitioner's attack is directed principally to alleged irregularity of the proceedings of the board of supervisors. A demurrer to the petition was sustained without leave to amend. Judgment thereupon followed in favor of defendants, and plaintiff appeals. No complaint is made of the court's refusal to allow amendments to the petition, but it is contended that the petition states a cause of action, and that the order sustaining the demurrer was therefore erroneous.
1. The first point raised against the validity of the proposed issue is, that the ordinance providing therefor is void in attempting to legislate upon more than one subject, — namely, the issuance of bonds for ten different distinct purposes or subjects. The title of the ordinance in question is as follows: —
The charter of the city and county of San Francisco provides (art. II, chap. I, sec. 2): —
"An ordinance shall embrace but one subject, which shall be expressed in its title. If any subject be embraced in an ordinance and not expressed in its title, such ordinance shall be void as to so much thereof as is not expressed in its title." This provision of the San Francisco charter has been takenverbatim from section 24 of article IV of the present constitution of this state, which in turn was adopted from section 25 of article IV of the earlier constitution of 1849. This provision of the constitution of 1849 repeatedly came before this court for construction, and was uniformly held to be directory merely, and persuasive only to the minds and consciences of the legislators. "We regard this section of the constitution as merely directory." (Washington v. Page,
2. It is contended that so much of the ordinance as provides for the issuance of bonds for a sewer system is void. Herein it is set forth that section 22 of article II of chapter 2 of the charter of San Francisco provides as follows: "The board of supervisors shall have power to provide in the annual tax levy for a special fund to be used in the construction of a general system of drainage and sewerage." It is argued that this is the declaration of a mode, and of the exclusive mode by which sewers may be constructed within the city. But all the provisions of the charter, under familiar rules of construction, are to be taken as a whole, and are to be construed harmoniously. Section 29 of article XVI of the same instrument provides: "When the supervisors shall determine that the public interest requires the construction or acquisition of any permanent building or buildings, improvement or improvements, land or lands, the cost of which in addition to the other expenses of the city and county will exceed the income and revenue provided for the city and county for any one year, they must by ordinance submit a proposition or propositions to incur a bonded indebtedness for such purpose or purposes to the electors of the city and county at a special election to be held for that purpose only," etc. The phrase "improvement or improvements" includes the construction of sewers. This is not even debatable, for, as was said in McHugh v.San Francisco,
3. The ordinance provided "for the acquisition of lands for public parks to be used as children's playgrounds." Appellant does not contest the right of the municipal authorities to acquire lands for public parks, but insists that to acquire lands for public parks for children's playgrounds is beyond the power of the municipal authorities, and therefore void. No person will question the wisdom or benefit of such acquisition in a densely crowded municipality like San Francisco, and such playgrounds are the breath of life to thousands and tens of thousands of the city's children. No authority is cited by appellant, and it may be confidently asserted that none can be found, sustaining the contention that the use of such parks for such purposes is in any wise unlawful. The right to acquire the land for park purposes being undisputed, if after their acquisition one should contest the use proposed to be made of them upon the ground that it would be illegal, and such contention were sustained, the result would be merely to limit the use strictly to park purposes. We are of the opinion that lands may be acquired for park purposes, and that it is a part of park purposes to devote some of those lands to children's parks. The general public is not thereby denied access to, and the use of, these lands, and with as little justice can be heard to complain of the use made of them as could the children, because in other parks were provided for adults, pleasures by way of speed-tracks, automobile-roads, and bicycle-paths, in the enjoyment of which they could not share.
4. It is contended that the provisions of the ordinance calling *391
for a bonded indebtedness for the erection of new schoolhouses, of improvements to existing schoolhouses, for the acquisition of land for these purposes, and of additional land for playgrounds of established schools, are invalid, "for the reason that education is a state affair and not a municipal affair." No authority is cited in support of this contention, but, to the contrary, in the case of In re Wetmore,
5. It is contended that the ordinance providing for bonds for the acquisition of lands is void for a failure to follow the provisions of section 21 of chapter 1 of article II of the charter, as follows: "Except as otherwise provided in the constitution of the state, or as otherwise provided in this charter, every ordinance . . . for the purchase of land of more than fifty thousand dollars in value, must be submitted to the vote of the electors of the city and county at the election next ensuing after the adoption of such ordinance." But section 29 of article XVI of the same charter declares: "When the supervisors shall determine that the public interest requires the construction or acquisition of any . . . land or lands, the cost of which, in addition to the other expenses of the city and county, will exceed the income and revenue provided for the city and county for any one year, they must *392 by ordinance submit a proposition or propositions to incur a bonded indebtedness for such purpose or purposes to the electors of the city and county at a special election to be held for that purpose only." The bond proposition was submitted to the electors in accordance with this section at a special election called for that purpose. The contention of appellant is, that the question of the acquisition of lands should have been submitted at the next ensuing regular election following the adoption of the ordinance. These charter provisions, as we have said, are to be read and construed in connection with each other, and so reading them there is no conflict between the provisions, and their meaning is quite plain. Whenever the public interest requires the acquisition of any land, and its purchase will exceed the moneys available out of the income of any one year, the supervisors"must" submit the proposition to incur a bonded indebtedness for this purpose at a special election, held for that purpose only; but where funds are available from the income of any one year for this purpose (so that a bonded indebtedness is not necessary), and where the purchase price will exceed the sum of fifty thousand dollars, the conditions are radically changed. The money is in hand and available, and there is to be submitted to the voters merely the question of the wisdom and propriety of buying the land. To resolve this question a special election becomes an unnecessary expense, and it is therefore provided that it shall be determined at the municipal election next following.
6. It is next urged that the bonded indebtedness thus incurred may exceed the fifteen per cent of the assessed value of all real and personal property in San Francisco, thus violating the provisions of section 9 of article XII of the charter; but, as the assessment-roll of San Francisco exceeds $420,000,000, and as fifteen per cent of this would be $63,000,000, and as the contemplated bond issue is but $17,771,000, and as the municipality has no other bonded indebtedness, it is not apparent how appellant's contention in this regard can be upheld.
7. It is contended that the proposed bond issue is void upon the ground that there is a variance between the number and denomination of the bonds called for by ordinance No. 1114 and those contemplated by ordinance No. 956. Ordinance No. 1114 provided for the issuance, sale, and redemption of the *393
bonds, while ordinance No. 956 provided for notice of a special election called to authorize their issuance. By section 11 of article XII of the charter it is provided: "The bonds so issued shall be exempt from all taxation for municipal purposes, and shall be issued in denominations of not less than ten dollars nor greater than one thousand dollars, and preference in the sale and allotment thereof shall be given to subscribers for the smallest amount and lowest denominations." In section 10 of the same article it is provided that, after the expiration of ten days from the publication of the ordinance calling for a special election, "the supervisors shall cause to be published daily for not less than two weeks in the official newspaper a notice of such special election. Such notice shall specify the purpose for which the indebtedness is to be incurred, the number and character of the bonds to be issued, the rate of interest to be paid, and the amount of tax levy to be made for the payment thereof." All this was done. The same number of bonds (11,963) of all denominations is called for by both ordinances. The number of the bonds to be issued for each separate purpose is the same in both ordinances, but in some instances the denominations of the bonds were changed, though in no instance did the denomination fail to conform to the requirements of section 11 of article XII, above quoted — namely, that no bonds shall be issued of a less denomination than ten dollars or greater than one thousand dollars. The variance complained of is immaterial, and in the case of Derby v. City of Modesto,
8. It is last contended that the proposition to issue bonds for the acquisition of Telegraph Hill did not receive the assent of two thirds of the voters. The election commissioners found that at the election 27,308 votes had been cast, of which 17,932 votes were cast in favor of the issuance of bonds for the acquisition of Telegraph Hill, and 8,187 votes were cast against such issue. The result is that 1,189 voters failed to register their will in the matter of the issuance of the Telegraph Hill bonds. While it is admitted that more than the necessary two thirds of the vote of those voting upon the question was cast in favor of the acquisition, it is contended that there should have been two thirds of the 27,308 votes, and that otherwise the bond issue was not carried. Universally courts have been reluctant to defeat the fair expression of the popular will in elections, unless the plain mandate of the law permitted of no alternative. So where the law of Kansas required that in case of the purchase of property in excess of a given value, the proposition should be submitted to a vote of the people at some general election, and a majority of all the votes cast at a poll open for that purpose must be in favor of the purchase, it is held by the United States circuit court sufficient if the proposition receive a majority of all the *395
votes cast upon that subject, although not a majority of all the votes cast at that election. (Armour Bros. Packing Co. v. Boardof County Commissioners, 41 Fed. 321.) So, also, where the constitution of Missouri provided that the general assembly shall not authorize any county, city, or town to loan its credit to any company, association, or corporation "unless two thirds of the qualified voters of such county, city, or town at a regular or special election to be held therein shall assent thereto," and where two thirds of the qualified voters did not assent thereto, but two thirds of those voting did assent thereto, the supreme court of the United States decided that the voters who absented themselves were presumed to assent, and that such election was duly carried upon the favorable vote of two thirds of those voting. (County of Cass v. Johnson,
The judgment of this court, therefore, is, that the judgment of the trial court is affirmed as to all saving the ninth cause of action pleaded in plaintiff's complaint. As to that cause of action, touching the acquisition of Telegraph Hill for a public park, the demurrer of defendants to be overruled, and if the proofs of plaintiff upon trial shall correspond to the allegations of the complaint, then upon this cause of action to enter its judgment in accordance with the prayer of the complaint.
McFarland, J., Shaw, J., Angellotti, J., Van Dyke, J., and Lorigan, J., concurred. *397