Summary
In Howland v. Board of Supervisors, supra, relied upon by respondent, two separate and distinct elections were held, one a general election and one for the purpose of submitting a proposition to incur a bonded indebtedness.
Summary of this case from People ex Rel. Smith v. City of WoodlakeOpinion
Department One
Appeal from a judgment of the Superior Court of San Joaquin County. Ansel Smith, Judge.
COUNSEL:
Nicol & Orr, for Appellant.
W. B. Nutter, and Marion DeVries, for Respondent.
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
This is an appeal from a judgment of the superior court of San Joaquin county against petitioner, in a proceeding to review the action of the board of supervisors of that county, in the matter of contracting a bonded indebtedness of said county, and of issuing the bonds thereof for the purpose of creating a fund for the purchase of land and the erection thereon of suitable buildings and improvements for a county hospital, poorhouse, and farm. Petitioner claims that the board of supervisors exceeded its power in directing the issuance of said bonds, and in contracting said indebtedness, for two reasons:
1. It is insisted that two-thirds of the qualified electors of the county of San Joaquin voting at the general election November 8, 1892, did not vote in favor of the issuance of these bonds, and for that reason the proposition to issue was defeated. The returns of the general election show that six thousand five hundred votes were cast thereat; that three thousand eight hundred and eighty electors voted in favor of the issuance of bonds, and one thousand and six voted against their issuance; and it thus clearly appears that, if two-thirds of all the votes cast were necessary to legally justify the board of supervisors in the issuance of the bonds, then the proposition was defeated. But does the law so declare? The foundation of the entire proceeding may be found in article XI, section 18, of the constitution of this state, which provides:
" No county. .. . shall incur any 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."
If there had been no general election held at the same time this bond election was held, there would be no question but that two-thirds of the qualified electors of the county voting assented thereto, and the fact that the county, by its board of supervisors, embraced the privilege extended to it by the legislature, by the act of 1891, and held the election upon the day and at the same place as the general election, we think wholly immaterial. The constitution provides that the voting upon the proposition must be done at an election held for that purpose, and, if there was not an election held upon this day for the purpose of allowing the qualified electors of San Joaquin county an opportunity to express their opinions upon this proposition, then it would be impossible to submit the question to the electors at a general election. This cannot be true, and it is quite evident that there was an election held for the purpose of submitting the proposition to the qualified electors of San Joaquin county. At that election three thousand eight hundred and eighty votes were cast in favor of the issuance of the bonds, and one thousand and six votes against such issuance. It follows that two-thirds of the qualified electors of the county voting at an election held for the purpose, assented to the incurring of the indebtedness and the issuance of the bonds, and that the constitutional provision in this regard is satisfied.
If additional argument were necessary to sustain a construction already quite plain, it may be suggested that the election held upon this day, as far as the bond question is concerned, was a special election. The election was called by proclamation of the board of supervisors of San Joaquin county, for a single, definite purpose, and, ex necessitate, was a special election, and the votes cast for and against the issuance of bonds were all the votes cast at that election. As already suggested, the fact that the legislature granted the county the right to use the machinery of the state in conducting the election, [41 P. 865] if it so desired, and that it embraced the right granted, in no way changes the legal aspect of the case. There is no authority cited, and we know of none, opposed to this conclusion.
2. It is insisted that the entire proceeding is void, upon the ground that the board of supervisors, neither at the time of incurring said indebtedness nor at any time prior thereto, made any provision for the collection of an annual tax sufficient to pay the interest on said indebtedness as it falls due, or to constitute a sinking fund for the payment of the principal within twenty years from the time when the indebtedness was contracted. The section of the constitution, a part of which we have already quoted, in speaking as to this question of indebtedness, provides:
" 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."
This provision of the constitution does not require that at the time of the sale or issuance of bonds, or the incurring of the bonded indebtedness, a sinking fund or interest tax be levied. It only requires that before or at such time provision must 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. These bonds were issued by express terms under the provisions of an act of the legislature found in the statutes of 1891, page 295. The notices so prescribed, and the bonds themselves upon their face so recite. That statute fully and completely provides for the payment of the interest upon these bonds, and also for the creation of a sinking fund to extinguish the original indebtedness. (Stats. 1891, sec. 14, subds. C, D, E, and sec. 37, p. 295.) We conclude there is nothing in this point.
For the foregoing reasons the judgment is affirmed.