119 Cal. 225 | Cal. | 1897
Montague & Co. petitioned the superior court for a writ of mandate to compel the city treasurer of the city of Vallejo to pay a certain warrant drawn for the sum of ninety dollars and eighty-five cents by the trustees of said city. A demurrer was sustained to the petition, and the soundness of that ruling of the trial court is the matter presented here for consideration.
The material facts disclosed by the petition may be thus summarized: In January, 1895, the aforesaid city, by its trustees, resolved to purchase and did purchase from Montague & Co. one hundred feet of waterpipe for the sum of ninety dollars and eighty-five cents, and the warrant of said city for that amount was issued in pursuance of such purchase, and is the warrant here under consideration. At the time this pipe was so purchased it was laid underground in one of the streets of said city, and formed a part of the system of waterworks then owned and used by said city. The history of this particular piece of pipe is a material element entering into a consideration of the question at issue, and that history is as follows:. The city of Vallejo, by a vote of its electors, decided to create a permanent improvement in the form of a waterworks system for the use and benefit of the city. To this end bonds were issued and sold to the amount of two hundred and fifty thousand dollars. Montague & Co., the petitioner here, entered into a contract with the city to furnish certain waterpipe, properly embedded in the streets, at a fixed price per lineal foot, and, in accordance with the terms of such contract, said Montague & Co. did furnish such pipe to .the value of thirty thousand dollars. The city paid about twenty-
It is attempted by this proceeding to pay for the one hundred feet of pipe out of the income of the city levied and collected in the fiscal year 1894-95. This can be done if the pipe was purchased during that fiscal year, and not otherwise. If the title to this pipe was in Montague & Co., January, 1895, when the board of trustees of the city attempted to make the purchase, then there can be but one result to this litigation. But, on the contrary, if Montague & Co. had no title at that time, there was no sale and no contract, and the treasurer was entirely justified in refusing payment of the warrant here in dispute.
Where did the original contract between Montague & Co. and the city of Vallejo leave the title to this one hundred feet of pipe? The true construction of section 18,article XI,of the constitution of this state locates that title. That section reads: “NTo county,, city, town, township, board of education, or school district shall incur indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and - also to constitute a sinking fund for the payment of the principal thereof within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void.” Justice Boss, in San Francisco Gas Co. v. Brickwedel, 63 Cal. 643, declares the meaning of this provision of the constitution to be: “That no such indebtedness or liability should be incurred (except in the manner stated) exceeding in any year the income and revenue actually received by such county, city, town, township, board of education, or
If the fact that an election was held authorizing this improvement to the city is material to this litigation, such fact must tend to strengthen the legality of the contract entered into between these parties, rather than weaken it.
The judgment appealed from is affirmed.
Harrison, J., McFarland, J., and Henshaw, J., concurred.