City of Oakland v. Thompson

HENSHAW, J.

This is a petition for mandate against the respondent, who is city clerk of the city of Oakland, to compel him as such official to countersign certain municipal bonds of petitioner. The proceedings culminating in the voting of the bonds are set forth in full.

The respondent pleads by demurrer, and admits the due performance of all the acts taken by the officers of the city, and admits likewise the regularity and sufficiency of the election proceedings and of the election. He bases his refusal to countersign the bonds upon two grounds—1. That the proceedings culminating in the- special election whereat the bonds were voted were had under a statute not applicable to the purpose; and 2. That the election, calling as it did for the acquisition of certain detached pieces and parcels of land for public parks, was irregular and void in this: that each piece and parcel of land proposed to be purchased should have been submitted to the voters to be voted upon as a separate and distinct proposition; whereas, by the method adopted, it was made necessary for the voters to vote for or against the acquisition of all of these detached parcels as a single unit.

[574]

1. Under the first objection it is contended that the proceedings should have been had, the election called, and the bonds issued under an act of the legislature entitled “An act to enable incorporated cities and counties, and towns to acquire, maintain, and improve public parks and boulevards.” (Stats. 1889, p. 361.) In fact, the proceedings were had under the authority of the act of 1901, entitled “An act authorizing the incurring of indebtedness by cities, towns, and municipal corporations for municipal improvements, and regulating the acquisition, construction, and completion thereof.” (Stats. 1901, p. 27.) It is argued that the act of 1889 deals expressly with the subject-matter of the petitioner’s bond election; that there is no repugnancy between it and the later act of 1901, which is general in its nature, and that it must be held, therefore, that the legislature in the act of 1889 has set forth the single and controlling method whereby municipalities may acquire lands for park and boulevard purposes. It may freely be conceded that no repugnancy exists between the act of 1889 and the act of 1901, but it does not necessarily follow therefrom that the act of 1889 provides the sole and exclusive method by which a municipal corporation may acquire land for park purposes. Thus, if it shall be determined that the act of 1901 is in its scope broad enough to include the acquisition of lands for park and boulevard purposes, there is no constitutional inhibition forbidding the legislature from providing two independent schemes, to either of which a municipality may have resort as it shall deem expedient. Indeed, the essential difference between the act of 1889 and that of 1901 is in the life of the bonds, the act of 1889 providing for twenty-year bonds', and that of 1901 for forty-year bonds. One city might‘consider it to be more to its advantage tq use the longer-term bonds, while another might be of contrary opinion, and, as we have said, there is no constitutional or other objection which prevents the legislature from giving cities their option and choice in this matter.