60 P. 925 | Cal. | 1900
This is a proceeding by one claiming to be a taxpayer and elector of the city of San Diego to contest an election held for the purpose of determining a proposition to incur a large indebtedness, and to issue bonds of the city to the amount of a million and a half of dollars for the construction or acquisition of waterworks.
The action is one which could not be maintained by anyone except a taxpayer or elector of the city, and the first finding made by the trial court is: "That the said A.M. McConoughey is not, and was not during any of the times mentioned in the amended complaint herein, an elector and taxpayer, or an elector or a taxpayer, of or in the said city of San Diego, California." This ought to have ended the case, for the only legitimate object of the proceeding was to obtain a judgment binding upon the city, its taxpayers and electors, and they ought not to be bound by a litigation which the plaintiff had no right to institute or to maintain.
The court, however, proceeded to find upon all the issues in the case, and to make a decree affirming the validity of the election and the various proceedings involved. From this decree the plaintiff appeals. If he is neither a citizen nor a taxpayer of San Diego, he has no more right to be heard in this court than in the superior court, for he cannot be injured by the decree. But the judgment is one which, in form at least, is binding upon those who are citizens and taxpayers, and for *368 that reason it ought not to be affirmed here. We think the only proper order to make in the case is to reverse the judgment and remand the cause, with directions to the superior court to dismiss the action.
The appellant claims, and this claim should not be overlooked, that the answer admits him to be a citizen and taxpayer by failure to deny the allegations of the complaint. The only defendant in the case is the city, and it is doubtful if the city could make an admission that would enable one who is neither a citizen nor taxpayer to carry on a litigation which would bind those who are citizens and taxpayers, but in this case the city answers that it has no knowledge as to plaintiff's being a citizen or taxpayer and therefore denies that he is either. Appellant claims that this is no denial, because the facts must appear of record in the registry lists and assessment-books kept by the city, and in such cases he contends that a denial upon information or for want of knowledge must be disregarded. But the records referred to could not have shown that plaintiff was a citizen or taxpayer at the date of the filing of his complaint. They might have shown that on the first Monday of March preceding he was a taxpayer, or that at the previous election he was a voter, and they might have been evidence prima facie that he was still a voter and taxpayer; but they would not have been conclusive evidence of those facts, for he could have removed from the city and parted with his property after the records were made and before the commencement of the suit.
The judgment of the superior court is reversed and the cause remanded, with directions to the superior court to dismiss the proceeding.
Temple, J., McFarland, J., Harrison, J., Van Dyke, J., and Henshaw, J., concurred. *369