Hammond v. City of San Leandro , 135 Cal. 450 ( 1902 )

Injunction. Plaintiff was nonsuited, and he appeals from the order denying his motion for a new trial.

Defendant took proceedings to bond the city of San Leandro, a city of the sixth class, for the purpose of supplying electric lights, "about the public streets, parks, places, and buildings of said city," under the provisions of the act of March 19, 1899, (Stats. 1899, p. 399). The objections to the proceedings now urged are: 1. That the act does not give authority to the city to issue bonds for this purpose; 2. Section 4 of the act makes it "the duty of the legislative branch of any municipality contemplating permanent improvements to first have plans and estimates of the cost of such improvements made by a competent engineer or architect who has had successful experience in such work before the question of incurring an indebtedness for such improvements is submitted to vote," and it is claimed this was not done; and 3. That the polls at the election were kept open after sunset.

1. Appellant relies on the point that the only power conferred by the act of 1889 to create an indebtedness is found in section 2 of the act, which mentions specifically certain improvements that may be made (among which lighting cities is not one), and adds to these "other municipal improvements." This latter phrase, it is contended, can apply to such improvements only as areejusdem generis of those recited in the section. (Citing Sutherland on Statutory Construction, sec. 268.) But the grant of power is to be found in section 1, which provides that "any city, town, or municipal corporation . . . may, as hereinafter provided, incur indebtedness to pay the cost of any municipal improvement, or for any purpose whatever requiring an expenditure greater than the amount allowed for such improvement by the annual tax levy." Section 2 is not intended as a limitation upon the power conferred by section 1, and this, we think, is shown by the fact that in section 2, after enumerating certain improvements, the terms used in section 1 are added. Section 862 of the act of March 13, 1883, subdivision 4, expressly provides that the trustees have power to establish streets, alleys, and places in the city, and to light the same. (Stats. 1883, p. 269.) The power to light the city implies also the power to use the means necessary to accomplish that object. Whatever may be the limit that should be placed upon the terms "any municipal improvement," we think they clearly embrace the improvement here contemplated.Von Schmidt v. Widber, 105 Cal. 151, cited by appellant, lays down no rule in conflict with this construction of the statute.

2. In plaintiff's complaint the ordinances passed by the trustees of defendant relating to this bond issue are set forth. In these the necessity for the improvement is declared, and that the public interest and necessity demand the construction of an electric-light plant, the cost of which was fixed at ten thousand dollars, and it was recited that the "board of trustees have had plans and estimates of the cost . . . made by a competent architect who has had successful experience in such work, and which plans and estimates have been adopted, . . . and are now on file in the office of the city clerk of said city." Ordinance 46, ordering the election among other things, was passed November 4, 1895, and the election was held December 16, 1895, at which more than two thirds of the electors voted in favor of the bond issue. The foregoing facts are presumed to be true, and it devolved on plaintiff to show that some material duty was omitted in order to overcome this presumption. As to plaintiff's second point now before us, there is no evidence except such as was introduced by plaintiff. Witness Williams testified that he had been city clerk for five years next previous to the trial (which was on April 20, 1896); "that the only plans for the construction of an electric-light plant which were ever submitted to the board of trustees . . . prior to January 16, 1896, as far as he could remember, were submitted to the said board on the second day of September, 1895, by John Driver, and at the same time plans were adopted for an engine"; that "no one ever submitted . . . any written estimate of the cost of the construction and acquisition of an electric-light plant for said city, but that one Scrivener gave to the board of trustees at their regular meeting held September 2, 1895, a verbal estimate of the cost of an electric light plant for said city, . . . at the request of said board." John Driver testified that he was a draftsman by trade; that he has had twenty-five years' experience in the matter of building and constructing engines and their cost, and "was familiar with the cost of the erection of dynamos and engines for driving dynamos"; that he submitted plans and estimates to the board for a building twenty by forty feet and plans for an engine, and they were the only plans he submitted; that he was not familiar with what would be necessary for a complete electric plant; "that he had an electrician make out the specifications and plans for the rest of the plant (other than the engine and building), and they were adopted by the board." Whether this was Scrivener or some other electrician, does not appear. This was all the evidence. It sufficiently appears that there were no written plans and specifications of a complete plan filed made by any one person. But it appears that an electrician made out plans and specifications for the plant, except for the engine and building, and as to these Driver made plans and specifications. It appears that plans and specifications were before the board and adopted, though submitted by different persons. There is no evidence that the persons making these plans did not possess the statutory qualifications. The presumption from the action of the board is that the persons who made the plans did possess the requisite qualifications, and it was incumbent on plaintiff to overcome this presumption by evidence. He failed to do so. The statute of 1889 (sec. 4) makes it the duty of the board "to first have plans . . . made by," etc. The act does not call for written plans and specifications. The purpose of the act is to inform the board of such facts as will enable the trustees to fix the cost of the improvement to be submitted to vote. Doubtless, written plans and specifications would be more satisfactory than verbal ones, and we think such should be procured by the trustees. But we cannot say that bonds would be illegal where such form of information was not placed on file. It would be quite possible for the clerk to take down the verbal statements so as to enable the board to act intelligently. So far as the building and engine were concerned plans were submitted apparently in writing, and it would seem that the plans for the electric appliances were so submitted, but this is not quite clear. The evidence that there were no written plans seems to be addressed to the question whether such plans were submitted of a completed plant as a whole, and not as to the several parts of a plant. However, we think plaintiff failed to sustain his contention. He nowhere alleged, and it was not shown by evidence, that the plans as adopted were unsuitable or of excessive cost, or were in any way not adapted to the object the board had in view.

3. The allegation that the polls were closed at 5 o'clock P.M., and that sundown occurred on the day of election at forty-one minutes past 4 P.M., is not denied. The point made is, that the polls should have closed at sundown. Section 856 of the act of 1883 required all elections to be held "in accordance with the general election laws of the State." At that time section 1160 of the Political Code required the polls to "be kept open until sunset." But by this section, as amended in 1889, the requirement was, that the polls "must be kept open until 5 o'clock on the afternoon" of the day of election. Section 4 of the act of March 19, 1889, supra, relating to bonded indebtedness of municipalities, provides that such election shall be held as provided by law for holding such elections in such city," etc.

Appellant claims that the act of 1883, in effect, incorporated section 1160 into the act, and that the amendment of that section in 1889 did not affect the act of 1883 in respect of the time for closing the polls. We cannot agree with appellant. The purpose of the act of 1883 was to make the hours of the election in municipalities uniform with the hours in state elections, and not to incorporate the section of the Political Code into the act. When the hour of closing the general elections was changed to 5 o'clock P.M., it necessarily changed the hour of closing the municipal elections.

It is advised that the order be affirmed.

Cooper, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed. Garoutte, J., Van Dyke, J., Harrison, J.