City of Redondo Beach v. Cate

This is a proceeding by mandamus to compel the city treasurer to sign certain improvement bonds and coupons. A peremptory writ was awarded upon the facts alleged in the petition, the defendant having declined to answer after his general demurrer was overruled.

It appears that in January, 1900, Redondo Beach was a city of the sixth class; that its board of trustees, proceeding under the act of March 19, 1889, authorizing the incurring of indebtedness by municipal corporations (Stats. 1889, p. 399), passed an ordinance declaring that the public interests and necessity of the people of that city demanded that the following named municipal improvements be constructed and procured, to wit: —

"The sidewalking, curbing, guttering, graveling, grading, and sewering of Ocean View Avenue, La Alameda, Benita Avenue, Emerald Street westerly from Chautauqua Avenue to La Alameda; also, grading and graveling certain portions of Camina Real, Chautauqua Avenue, Elena Avenue, Pearl Street, and portions of Carnelian Street."

This was followed up by proceedings apparently regular in all respects, eventuating in an ordinance authorizing and directing the issuance of the bonds and coupons in question, and making it the duty of appellant, as city treasurer, to sign the same. His refusal to sign is based upon the ground, among others, that neither the act of March 19, 1889, nor any other act authorizes the issuance of municipal bonds or the incurring of municipal indebtedness for the purpose specified in the ordinance.

This, we think, was a valid objection and fully justified the defendant in his refusal to sign. The trustees of a municipal corporation have no power to issue the bonds of the corporation except in the cases and under the conditions prescribed by law, and there is no warrant for the issuance of the bonds here in question unless it can be found in the act of 1889 or its amendments. The first section of that act reads as follows: —

"Any city, town, or municipal corporation, incorporated under the laws of this state, 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."

This section, read by itself, indicates pretty clearly that the indebtedness is only to be incurred for such purposes as would justify the expenditure of the revenue derived from the taxes levied upon personal as well as real property. But the section does not stand alone. It expressly states that the indebtedness may only be incurred, "as hereinafter provided," and the following section contains a specific enumeration of objects in furtherance of which a debt may be contracted, every one of which is a proper charge upon the general revenues of the city. This enumeration, it is true, is followed by the more general expression, "or other municipal improvements," which is broad enough to include the grading and paving of streets and sidewalks, but this again is qualified by the clause which follows — "the cost of which will be too great to be paid out of the ordinary annual income and revenue of the municipality." The construction of the act, we think, is plain. It does not authorize the issuance of bonds (which must be paid out of the revenue derived from taxes upon real and personal property), unless the money raised upon the bonds is to be devoted to purposes justifying the expenditure of the ordinary revenues of the city. The question, then, and the only question, to be considered is this: Can the ordinary revenues of a city of the sixth class be expended for the grading and paving of its streets?

A general authority to lay out, open, repair, and improve streets and sidewalks is conferred upon the trustees of cities of the sixth class by subdivision 4 of section 862 of the General Municipal Incorporation Act (see amended act, Stats. 1897, p. 175), but the mode of exercising the power is prescribed by the Vrooman Act (Stats. 1885, p. 147) and its various amendments. This is a general law in force in cities of the sixth class, and under its provisions the cost of grading and opening streets must be assessed upon the lots fronting on such streets (Stats. 1891, sec. 7, subd. 1, p. 201), or upon the land of a defined district (Stats. 1891, sec. 7, subd. 12, p. 204). In no event can it be made a charge upon the ordinary revenues. San Luis Obispo v.Haskin, 91 Cal. 550, is not authority against this proposition. In that case the court was asked to decide but a single question, and if that was ruled in favor of the plaintiff, it was admitted that the writ should issue. Accordingly, that question alone was considered — a question wholly foreign to anything presented in this case. Respondent contends, however, that in a subsequent case (Rice v. Board of Trustees, 107 Cal. 398) this court held that there could be a valid issue of bonds for the construction of a sewer, and that the Vrooman Act makes the cost of a sewer, like that of the grading of a street, a charge upon the lands benefited. In answer to this argument, it would be sufficient to say that the question we are here considering, even if it had been involved in the Rice case, was not raised or considered or decided. But, in fact, the question was not presented by that case, for the simple reason that under the Vrooman Act it is entirely within the discretion of the governing body of a city to make the cost of a sewer a charge upon the lands of an assessment district, or upon its ordinary revenue. (Stats. 1885, p. 162.) And the construction of sewers is one of the specially enumerated objects for which the act of 1889 authorizes the issuance of municipal bonds.

We cannot avoid the conclusion that the attempted issue of bonds in this case was invalid. The judgment of the superior court is therefore reversed and the cause remanded, with directions to sustain the defendant's demurrer to the petition for the writ.

Harrison, J., Garoutte, J., Van Dyke, J., McFarland, J., and Henshaw, J., concurred.