158 P. 187 | Cal. | 1916
Lead Opinion
This is a proceeding in mandamus by the Marin Municipal Water District and its directors to compel William Dolge, as auditor of said district, to countersign certain bonds so that the same may be issued by said district.
The bonds were prepared for issue in pursuance of an election duly called and held for that purpose in accordance with the act authorizing the formation of such districts. (Stats. 1911, p. 1290; Stats. (Sp. Sess.) 1911, p. 92.) It is alleged that the bonds were presented to the auditor, and he was asked to countersign the same but refused to do so.
The case comes clearly within the rule laid down in LosAngeles v. Lelande,
The act authorizes the board, upon approval by a popular vote, to issue bonds of the district. It does not require that such bonds be countersigned by any officer, or at all. The necessity for countersigning these bonds arises solely from the fact that the board of directors needlessly directed that they should be countersigned by the auditor. Section 10 of *726 the act provides that the board by majority vote shall appoint an auditor who "shall serve at the pleasure of the board." The board could therefore at any time remove the present auditor and appoint in his place someone who would obey its orders. Hence, there is no necessity for any application to the courts. The thing sought could have been obtained in far less time if the board had merely exercised its own powers to accomplish its purpose.
Manifestly, therefore, the real object of this proceeding was not to get the bonds countersigned, but to induce this court to consider and decide a number of questions argued in the briefs touching the constitutionality of the act, the validity of the organization of the district, and the regularity of the proceedings to issue the bonds. "A court will not decide a constitutional question, unless such construction is absolutely necessary." (Estate of Johnson,
Let the writ issue as prayed for.
Concurrence Opinion
The Chief Justice did not participate in the consideration or determination of this proceeding.
Rehearing denied. *727