City of Pacific Grove v. Irwin

DOOLING, J.

By this proceeding in mandamus the petitioner city of Pacific Grove seeks to compel the respondent, who is the city clerk of petitioner, to sign certain improvement bonds of said city aggregating $120,000 in face value.

It is undisputed that at a special election called by the city council of said city for that purpose and held on July 10, 1945, more than two-thirds of the voters voting at said election voted in favor of the issuance of such bonds. In the procedure leading up to such election the city council was

[47]

governed

by

the Bond Act of 1901 (Stats. 1901, p. 27, as amended; 2 Deering’s Gen. Laws, Act 5178) and the respondent’s refusal to sign the bonds is rested upon the claim that the city council failed to take the following steps required to be taken by the provisions of the governing statute: 1. The adoption of a resolution of public interest or necessity; 2. The ordinance calling the election did not state the estimated cost of the proposed improvements; 3. The ordinance calling the election did not provide the manner of holding the election and of voting for and against the indebtedness.

It may be admitted that in respect to these three procedural requirements there was not a literal compliance with the provisions of section 2 of the governing statute, although it might be held (a matter which we are not deciding) that the steps taken by the city council constituted a substantial compliance with the law.

On July 19, 1944, the council by more than a two-thirds vote adopted a resolution accepting the report of a post war planning committee, which report contained the recommendation that the two projects, contemplated to be constructed by the proceeds from the sale of the bonds here in question, be undertaken. This report recited among other matters that “these projects will have to be paid for by bond issues, as our study of the city’s post' war needs shows that the city has no moneys available in its treasury at this time for any of these projects’’ and further recited that “we unanimously believe that the first four matters are absolute necessities’’ (included among the first four matters were the two projects here involved). By its acceptance of this report by resolution so adopted it might be argued that the council by resolution passed by a two-thirds vote of its members did determine that the public necessity demands the construction of these projects and that their cost will be too great to be paid out of the ordinary annual income and revenue of the municipality, thus satisfying the requirements of the statute in those particulars. The report recited the estimated cost of the two projects and it might further be argued that by its action in accepting the report the council adopted these estimates as its own. The statute, it should be noted, requires this estimate to be included in the ordinance calling the election, rather than in the preliminary resolution. Subsequently on May 16, 1945, by more than a two-thirds vote, the council adopted a reso