Federal Construction Co. v. Wold

THE COURT.

This is an application for a writ of mandate directed to the superintendent of streets of the city of Burlingame.

The petitioner is the contractor to whom was awarded the contract for the doing of- certain street and other work in said city under the Improvement Act of 1911 (Stats. 1911, p. 730, approved April 7, 1911), and the Improvement Bond Act of 1915 (Stats. 1915, p. 1441, approved June 11, 1915). It is sought to obtain the order of this court that the respondent should enter into the contract with the petitioner for the doing of said work. The respondent has declined to sign said contract upon the ground, amongst others, that said Bond Act is unconstitutional, and upon the grounds of certain alleged irregularities in the proceedings leading up to the award of the contract.

With reference to the constitutional point, it appears that the Bond Act of 1915 provides that the municipality, in the absence of any other purchasers, must purchase all property offered at delinquent sales for the nonpayment of street assessments. It is contended that such a provision is in effect an incurring of liability not to be satisfied during the current fiscal year in which the same is incurred, and not supported by a two-thirds vote of the electorate, and hence violative of section 18 of article XI of the state constitution. This objection, if tenable, merely would render the provision requiring the municipality to purchase property offered at delinquent sales unconstitutional. It would not affect the validity of the balance of the act. However, it has been held that, this section of the constitution only refers to the acts or contracts of a municipality, and not to liabilities which the law places upon municipalities

(Lewis

v.

Widber,

99 Cal. 412,

[362]

[33 Pac.

1128]; Welch

v.

Strother,

74 Cal. 413, [16 Pac. 22];