48 P. 974 | Cal. | 1897
This is an action brought to enjoin the defendants from selling or disposing of certain bonds issued, but not yet sold, by the city of San Luis Obispo (one of the defendants), and to restrain defendants from levying the taxes mentioned in the complaint, and from enforcing a certain ordinance of the said city. The cause was tried by the court, and judgment given for the defendants. The appeal is from the judgment, and also from the order of the court denying plaintiff’s motion for a new trial.
Appellant presents three grounds of attack upon the bonds in question: First, that The bonds are made payable in ‘ ‘ gold coin of the United States” instead of “gold coin or lawful money of the United States”; second, that the question as to whether the interest on the bonds would be payable annually or semi-annually was not submitted to the voters; and, third, that the voters voting for said bonds voted by stamping a cross opposite the propositions submitted to them, instead of indicating their wish by writing “Yes” or “No” opposite the proposition they desired to vote for. The regularity of the proceedings of the city authorities is not drawn in question, except as these may relate to appellant’s second and third points. By the act of March 1, 1893 (Stats. 1893, p. 61), it is required that the bonds and interest “shall be payable in gold coin or lawful money of the United States.” The ordinance provided that both principal and interest shall be payable “in gold coin of the United States,” and the notice of election was in that form. The contention of appellant is that the bonds should have been made payable “in gold coin or lawful money of the United States,” and not in “gold coin” only. The argument is that, because the previous statutes authorizing the issuance of bonds (Act March 19, 1889, Stats. 1889, p. 399, and Act March 11, 1891, Stats. 1891, p. 94) were silent as to the kind of money in which the bonds might be made payable, and there was no restriction in this regard, therefore the amendment introducing a restriction was intended to limit the power and to com
In the case at bar the bonds are in conformity with the ordinance and with the notice of election, but they are not in the terms of the statute as to the kind of money made payable, and the question is, Do they substantially comply with the statute? It seems to me that to hold that they do would violate the reasoning upon which Skinner v. City of Santa Rosa rests. Respondent, with much force and reason, suggests : ‘ ‘ That the plain grammatical and common-sense construction is that the city should choose between the two kinds of currency. It must adopt one or the other, but the wisdom as well as the expediency and responsibility of the
2. It is further contended that the question as to whether the interest on the bonds would be payable annually or semiannually was not submitted to the voters, but should have been. I think the law was fully complied with in this particular. The term “five per cent per annum” means interest payable annually, and this is the form prescribed in the bond. There is no merit in this point.
3. Appellant objects further that the ballot used was a violation of the directions in the notice of election; that the notice required the voter to write the word “Yes” or “No” opposite the proposition he desired to vote for, whereas by the ballot voted he was directed in fact to stamp a cross. It was found by the court that two-thirds of the voters who voted at said special election voted said ticket by stamping a cross opposite the word “Yes” or “No,” which was printed after the proposition on said ticket, and in no other way. Appellant says that this method of voting may be good under
The question, then, is, Was the ballot prescribed and voted such compliance with the ordinance as should be upheld by this court ? It is true, as respondents suggest, that the words “Yes” and “No” were printed on the ballot opposite the proposition in separate lines, but can it be said that the voter printed them, or caused it to be done? It is true, the ballot is so formed that placing a cross oposite the “Yes” or “No” would convey the wish of the voter, because the ballot informs him that he is to so express his wish, and the operation is easy and simple. The question must, it seems to me, resolve itself into the one proposition: Was the -method directed by the ordinance mandatory ? In the ease of Lay v. Parsons, 104 Cal. 661, 38 Pac. 447, the provisions of the so-called “Australian Ballot Law” were under review. Mr. Justice Van Fleet, speaking for the court, said: “The law requires the voter to mark his ballot by means of a stamp, by putting a cross opposite the name of each candidate thereon' for whom he intends to vote. This provision of the law is, we think, mandatory, and no other method will satisfy it.” In the case of People v. Town of Sausalito, 106 Cal. 500, 39 Pac. 937, where the same law was before the court, Mr. Justice McFarland said: “Appellant also contends that ballot ‘F’ should have been counted against incorporation; but it had no mark of any kind, except at the bottom, entirely below all the printed matter, it had the words ‘Against Incorporation’ written with a pencil, and was properly excluded. There is no provision for that method of voting except when one desires to vote for a candidate for office whose name is not on the printed list on the ballot. Under our present
.We concur: Belcher, C.; Searls, C.
For the reasons given in the foregoing opinion the judgment is reversed and the court below is directed to enter judgment for the plaintiff as prayed for in the complaint.