PRESTON, J., Dissenting
I dissent.
Not so much from the conclusion as from the reasoning of the main opinion that assumes to make applicable to this bond issue the so-called 1931 amendments to the act and also from the further reasoning employed to hold that the judgment in this action is
res judicata
on the question of the power to tax the property of the district to retire the indebtedness.
I would have no objection to a holding of the court in this action that it is the plain duty of the respondent to attest these bonds, if the above-mentioned propositions were' eliminated as grounds for the conclusion. In other words, the re
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spondent, as an official, may properly question the validity of the organization of the district and the regularity of the bond election and any subsequent proceedings pursuant to the act up to the point of issuance of the bonds, but no further, for it must not be overlooked that the express intent and tenor of the legislature under which petitioner is organized is to retire the bonds issued from the revenues received from the operation of the bridge and not from taxation; hence the question of taxation may never arise. The power to tax comes into being only upon the happening of a certain ■ event. O'r to put it still another way: The bonds are regularly issued whether the power to tax the property of the district for their payment is conditional or absolute; therefore, the opinion, in my judgment, makes a gratuitous excursion into fields beyond the scope represented by respondent.
This dissent need not be extended and I shall confine my discussion to the following propositions: (1) Power to tax property of the district involves serious state and federal questions which cannot be settled by determination of the issues in this proceeding and moreover as a matter of policy should not be attempted, (2) The 1931 amendments to the act import radical and revolutionary alterations in the liability of the taxpayers of the district, to their detriment, and the said amendments should be held inapplicable to the bond election already held. These questions will be considered in the order named.
This is a
mandamus
proceeding by the district against its own secretary to compel him to subscribe or attest the bond issue. Numerous taxpayers have been allowed to appear as
amici curiae
to urge that grave legal questions are involved and that respondent cannot and does not represent them as to such issues and, moreover, as to them, this court is entirely without jurisdiction. I see no reason why respondent, even though personally interested adversely to the taxpayers, may not officially represent them in all matters germane to the issues made by the pleadings but this is far from authorizing . the determination of questions outside these issues.
The act of 1923, as amended in 1925, contained sections 20 and 21 which read as follows: Section 20 (Stats. 1923, p. 463). “The board of directors shall require the general manager to furnish an estimate of the rates necessary to
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pay the obligations of the district, and upon the recommendation of the general manager, or such modifications thereof as they may adopt, shall fix such rate as will pay the operating expenses of the district, provide for repairs and depreciation of works, owned or operated by it, pay the interest on any bonded debt, and so far as possible, provide a sinking or other fund for the payment of the principal of such debt, as it may become due, it being the intention of this act to require the district to pay the interest and principal of its bonded debt from the revenues of the district.”
Section 21 (Stats. 1925, p. 720, sec. 4). “If the revenues ■ of the district are, or in the judgment of the board of directors, will probably be inadequate for any cause to pay the principal or interest on any bonded debt of the district, as it becomes due, the board of directors must cause a tax to be levied as herein provided sufficient to provide for such deficit and to pay the amount of such principal and interest as the same becomes due, except that until the operation of the works of the district has commenced, and the same commenced to yield a revenue, the interest on the bonded debt shall be paid out of the principal obtained from .the sale of the bonds, and after the operation of its works no taxes shall-be levied except for deficits, either actually incurred or estimated for the fiscal year in which the same are levied. If from any cause the revenues of the district shall be more than adequate to pay all of tie expenses of the district for the current year any surplus shall be divided by the directors of the district, and apportioned to the respective counties within the district in the proportion which the assessed value of property within such county, city and county or parts of counties within the district bears to the total assessed value of property within the district.”
It can thus be seen that the bonds voted by the taxpayers of this district rest primarily upon the revenues from the operation of the improvements. The power of taxation is conditional; it may be exercised only to supply a deficit in the revenues and this only an anticipated deficit for the current fiscal year. Liability is thus made secondary and indemnatory and not primary. If the revenues are sufficient (and the board has power to make them such) the question of taxation will not arise. In refusing to sign, respondent, therefore, is “borrowing trouble” and antici
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pating events which the act contemplates that the board, by a fixation of proper tolls, shall prevent. For example, in the Statutes of 1929, chapter 763, pages 1492, 1494, sections 5 and 8, are found provisions authorizing a bond issue to span San Francisco Bay resting solely upon the revenues to be derived from the operation of the improvement; the right to tax nowhere exists, yet the bonds may issue for that project. It may even be conceded that as a legally organized district, the abstract right to tax is involved in the issues represented by respondent. But this, if true, is far from saying that respondent represents the issue as to when taxation under this particular act may be had.
The doctrine of
Price
v.
Sixth District,
201 Cal. 502 [258 Pac. 387], must not be perverted and extended to issues not properly included in the pleadings as made or in the issue as determined. The issue held determined in that case related simply to the validity of a certain contract and the power and authority of the public officers involved to execute it. The holding in that ease does not foreclose inquiry into questions that were not a necessary ingredient of the issue determined. The issue as to when the power to tax arises and the conditions under which such power may be exercised are not necessarily involved in the validity of the district or the regularity of the proceedings leading up to the bond issue. In other words, the power of taxation may or may not come into being upon the happening of certain eventualities and such a contingency is no necessary part of the issue between the district and respondent. That the issue of taxation has not been foreclosed by any previous decision of this court has twice been expressly held. See
Doyle
v.
Jordan,
200 Cal. 170, 190, 191 [252 Pac. 577], and
Wheatley
v.
Superior Court,
207 Cal. 722, 726 [279 Pac. 989, 991], where the court in reviewing the Doyle case says:
“
... It is urged that the act under consideration presents certain unconstitutional features with reference to its provisions for taxation, and we are asked to decide that question here. We think such a problem is not presented at this time. In the case of
Doyle
v.
Jordan, supra,
it is expressly stated that, regardless of the validity of the taxing provisions of the act, the district, when formed, may become a valid and constitutional agency of the state and that if the directors thereof have been given any unlawful powers, in
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a proper proceeding, when they attempt to exercise them, such exercise will be controlled or prevented by the courts. As in the case of
Doyle
v.
Jordan, supra,
we are herein concerned only with the proceedings incorporating the district. ’ ’
It may not be said that respondent is interested in the validity or invalidity in the recital on the face of the proposed bonds, as follows: “ . . . that provision has been made by law for the levy and collection of a direct annual tax upon all taxable property within said District sufficient to pay the principal and interest of this bond”. This is at most but a mere conclusion of law; it is not a recital of fact as was the case in
Municipal Imp. Co.
v.
Thompson,
201 Cal. 629 [258 Pac. 955]. If the power to tax exists, it exists regardless of the statement on the face of the instrument; if the power to tax does not exist, no recital in the bond can confer it.
But aside from the contention that a foreign issue is injected into this case, we may at once see from a glance at a map of the district that when the question ' of taxation arises, if it does arise, state and federal questions of a serious nature will be presented by reason of the omission from the boundaries of the district of large areas which as a matter of judicial knowledge may be seen to be equally if not more benefited than some of the areas included within the district. Del Norte County, for example, is probably more than one hundred miles distant from the nearest boundary of the contiguous area comprising the body of the district. It requires no resort to evidence but is clear from facts of which this court may take judicial knowledge that the property owners of Humboldt, a large and prosperous county of the state, and Lake County, lying between the separated areas of the district, are equally if not more benefited than the property owners of numerous areas within the district such as, for example, said Del Norte County and Mendocino County. That such discrimination raises the questions of due process of law and equal protection of the law has been repeatedly held by the Supreme Court of the United States. As said in
Memphis & Charleston Ry.
v.
Pace,
282 U. S. 241, 246 [75 L. Ed. 315, 51 Sup. Ct. Rep. 108, 110]:
“But, however the tax may be laid, if it be palpably arbitrary, and therefore a plain abuse of power, it falls within the condemnation of the due process clause,
Houck
v.
Little
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River District, supra; Valley Farms Co.
v.
Westchester, supra;
and if it be manifestly and unreasonably discriminatory it falls within the condemnation of the equal protection clause.
Gast Realty Co.
v.
Schneider Granite Co.,
240 U. S. 55 [60 L. Ed. 1239, 36 Sup. Ct. Rep. 400];
Kansas City Southern Ry. Co.
v.
Road Improvement Dist. No. 6,
256 U. S. 658 [65 L. Ed. 1151, 41 Sup. Ct. Rep. 604];
Thomas
v.
Kansas City Southern Ry. Co.,
261 U. S. 481 [67 L. Ed. 758, 43 Sup. Ct. Rep. 440];
Road Improvement District No. 1
v.
Missouri Pacific R. R. Co.,
274 U. S. 188 [71 L. Ed. 992, 47 Sup. Ct. Rep. 563].”
In
Milwee
v.
Tribble,
139 Ark. 574 [214 S. W. 56, 57], the court said: ‘ ‘ The act is unconstitutional and void because, as shown by the allegations of the complaint, it contains an entire section 'which is situated at a distance of five miles from the remaining lands described in the act of constituting the body of the district’, and excludes, or rather does not include, the lands intervening. ... It is impossible that the lands in section 18, and the other lands five miles distant, constituting the main body of the district, would be benefited, while the intervening lands receive no benefit whatever. The act, therefore, upon its face shows an arbitrary discrimination between the landowners, who necessarily derive benefit from the improvement. ...”
It is no answer to this contention to say that the taxpayers are estopped to raise the question of the power of taxation by reason of the recent bond election. In the first place, this is begging the question because the taxpayers may have and doubtless did believe that a direct tax would never be levied. I say this because the record contains a printed report of the chief engineer, which presumably was widely circulated among the voters and which contained in bold type these words: “Taxes may be levied only ... to cover deficiencies of revenue after construction has been completed.” Indeed, the above language is almost a direct quotation from section 21 of the act itself which states “no taxes shall be levied except for deficits”.
Nor can it be said that the taxpayers are estopped because the act provides a method by which a hearing may be had as to whether their lands will or will not be benefited by the improvement, for the act nowhere provides that they may have any of their lands excluded upon the ground that
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lands outside the district were arbitrarily excluded therefrom. The act is wholly lacking in conferring power to extend this kind of relief. This grotesque situation can be logically emphasized by supposing that the district were composed of Marin, San Francisco and Del Norte Counties only, omitting therefrom Sonoma, Mendocino, Lake and Humboldt Counties. Could it then be said that there was no discrimination or arbitrary action by reason of the omission of all these intervening territories from the district? This, under the procedure authorized by the act, might well happen. It is too clear for controversy that the district is a legalized anomaly and when it comes to the point of attempting to place a tax upon the property of the district as constituted, serious and far-reaching questions, both under the state and federal Constitutions, will arise. It is putting this court in an awkward predicament to anticipate these questions and to attempt in a friendly suit between the district and its secretary, to force upon the taxpayers of the district, a liability about which they have had no opportunity to be heard and over which the court in fact has no jurisdiction.
The handling in the main opinion of the question of the effect of the 1931 amendments to the act under which the district was formed and the bonds voted is even more open to question than is the other position disclosed by the above discussion. We have already noted that under section 20 of the act, the express intent of the legislature was “to require the district to pay the interest and principal of its bonded debt from the revenues of the district” and that the revenues only were to be resorted to for operating expenses, repairs, depreciation, sinking funds, etc.; that under no circumstances was taxation to be resorted to except to pay items of principal and interest for the current fiscal year where the revenues had' become or might become insufficient. This fact, which lies at the foundation of the proper interpretation of the whole act, is entirely omitted from discussion in the main opinion. That the bonds shall be retired from the revenues and the tolls shall be fixed to accomplish this purpose, is the keystone of the entire scheme for bridging the Golden Gate. Only a tax for deficiencies in revenue may be allowed under the act and this conforms to the decision of the district itself at the time when, with the provisions of sections 20 and 21 in mind, it
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stated that taxes would be levied only for deficiencies. The plain meaning of these sections is that after the bridge is built and opened to traffic, tolls fixed and revenues begin to come in, if a deficit as to principal and interest on the bonds exists or is foreseen for the current fiscal year, then and then only may a tax be levied and that only to relieve the then present deficit. In furtherance of this requirement, accruing interest prior to construction and operation must be paid from the proceeds of sale of the bonds. In other words, on this bond issue taxpayers may rest secure from tax until construction of the bridge and its operation and they may then be taxed only respecting the bonds for yearly deficits in revenue which the district is charged with the duty of preventing by the levy of sufficient tariff rates. The liability of the taxpayers is that of a guarantor and not that of a maker of an obligation. The main opinion undertakes to divorce section 21 of the original act from section 20, which it ignores, and thereby assumes ground upon which to indulge a strained, artificial and in fact absurd construction, a construction that petitioner even shows a lack of faith in.
Now come the amendments of 1931, and what do they provide ? In short, they relegate revenue from the operation of the bridge to a minor place in the scheme and make the obligation of the taxpayers primary—not only after construction of the bridge but before as well. In other words, the liability of the bondholders is not to provide a fund that shall build and put in operation a bridge where tolls are the primary source of revenue but the responsibility for the bridge, its construction and perhaps for a new bond issue are all lifted from the bondholders and shifted to the shoulders of the taxpayers. What will a taxpayer think when he realizes what has been done? What will future electors think when they come to vote at a bond election, reflecting that in the Golden Gate Bridge and Highway District the voters asked “for bread” and “received a stone”? By this legislation characterized as an amendment to section 21, through circumlocution, by retroactive interpretation and by the free use of assumption and innuendos, the conditional liability of the taxpayers is made an absolute and primary one.
It extends the time of payment of interest from the proceeds of the bond sales to a period of six months beyond
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the estimated period of completion of the structure. This the taxpayers could hardly object to. But with this concession as an allurement, comes the next provision that in July of the contemplated year of completion and pending this estimated period, if delay is forecast, a tax shall be levied to pay one year’s interest on the bonds. 1 This is a plain alteration of the contract between the taxpayers and the district under the former section to the effect that no tax should be levied for anything except deficits and this only after the completion of the bridge and the operation thereof. The amendment then sets up four funds. (Stats. 1931, p. 242) : 1. To pay operating expenses of the district; 2. To provide for repairs and depreciation of the works; 3. To pay the interest of such bonds as it becomes due, and 4. To provide a sinking or other fund, etc., and a provision for- borrowing money upon the faith of the revenues and taxes. Then follows the astounding change that in July of each year (whether the bridge is built or not or whether a new bond issue becomes necessary or not) each of the above funds shall be supplied and replenished. In other words, if the bridge is not built and, of course, no revenues come in, yet these funds are to be supplied and kept supplied from taxation. Can the most credulous and unwary not see that this plan alters radically and revolutionarily the liability
imposed by
the former section? There no tax except for deficits as to principal and interest after construction and operation existed and for these items only as to the current year. Here exists primary tax liability before construction and operation, which is another way of saying that regardless of construction or operation, a tax may be imposed not alone for current deficits in principal and interest but for operating expenses, repair, depreciation, repayment of sums borrowed and lastly, for the maintenance of a sinking fund for the liquidation of- the bonded debt. To say that these and similar changes which I shall not stop to enumerate are not high-handed alterations in the obligation assumed by the voters is simply to obliterate plain facts by judicial fiat. Yes, it is tantamount to a complete disregard of the will of the voters and will have a paralyzing effect on all bond elections hereafter where this doctrine is known. A taxpayer would be standing in his own light to east any
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other ballot than, “no” on any bond issue of a public corporation.
Petitioner, half admitting the justice of the strictures I have made, replies that the legislature has power to override the will of the voters and issue bonds upon any conditions it sees fit. In other words, that the propositions upon which the taxpayers voted need not be respected but may be changed at liberty. To put it more bluntly, the taxpayers may be deceived into pledging their assets to a given proposition by their ballots and afterward the legislature may radically alter that proposition to mean anything it likes and the taxpayers are powerless to secure relief therefrom. ■ To state this proposition is to demonstrate its lack of force as well as its manifest injustice. The cases cited below are direct authority that, the vote being sufficient, a bond election creates an obligation in the nature of a contract that must be respected and a material departure from the proposition as voted will not be upheld.
(Skinner
v.
City of Santa Rosa,
107 Cal. 464, 465 [29 L. R A. 512, 40 Pac. 742];
Peery
v.
City of Los Angeles,
187 Cal. 753 [19 A. L. R. 1044, 203 Pac. 992].) See, also,
O’Farrell
v.
County of Sonoma,
189 Cal. 343, 348 [208 Pac. 117, 119], where the court said: “The order calling the election and the ratification of that order by the electors constituted a contract between the state and the individuals whose property was thereby affected.
(Peery
v.
City of Los Angeles,
187 Cal. 753 [19 A. L. R. 1044, 203 Pac. 992].) After the contract had been made it could not be altered by one of the parties, only, but by all of the parties thereto. "When by its order, duly accepted by the vote of the electors, the length of the road had been specifically defined, its terminals specifically located, and the cost of the whole established—these elements became a part of the contract. As to them the board, acting alone, could not redivide the contract. Neither could it directly expend the moneys on only a portion of the road. What it could not do directly it could not do indirectly. Such fact is of the utmost importance to the interested parties. ’ ’
In
David
v.
Timon,
183 S. W. 88, 92, a Texas Civil Appeals case, we have an exact parallel in principle with the situation before us. There the voters supported a proposition to float a bond issue upon similar terms. The legislature
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undertook to alter the terms and conditions upon which the bonds were issued. This was held to be in violation of the Constitution of the state of Texas which provided that “no bill of attainder ... or any other law impairing the obligation of contracts, shall be made”. In that connection the court said: “The bonds must be issued and sold according to the very terms of the submission of the matter to the voters, and no material departure from the terms can be tolerated.”
The doctrine announced in the eases relied upon by petitioner is not in point, typical of which is
La, Mesa etc. Irr. Dist.
v.
Halley,
197 Cal. 50, 61, 62 [239 Pac. 719, 723]. Such eases as the above do no more than hold that the legislature may change the terms and conditions upon which the district was organized, the relation between the taxpayer and the district not being of contract. But this does not reach the situation here where the assets of the taxpayer are pledged to an obligation, thus bringing into operation the relation of parties to a contract. This is pointed out by the following language from the La Mesa case: “The respondents herein, however, make the contention that this court in the recent case of
Peery
v.
City of Los Angeles
(187 Cal. 753 [19 A. L. R. 1044, 203 Pac. 992]), has approved in its broadest application the doctrine which the respondents insist was declared in that decision; but an examination of the later case will disclose that the doctrine that the legislature may not change the law governing the issue and terms of disposition of bonds by cities was given application to a condition wherein certain bonds of the City of Los Angeles had already been voted and issued prior to the making of a change in the law permitting such bonds to be disposed of below par in contravention of the terms of the law in existence at the time of the election, whereby the electors voted to issue and sell the bonds of the city at par and not otherwise. It is clear that no such question is presented in the instant case, and nothing said therein can be interpreted as warranting the application of the doctrine applicable to the particular facts of the earlier case to the situation presented in the case at bar.”
I deplore the action of the court in this case. It opens us to the criticism that we are transcending our just province and making a decision as a pure expediency. The bonds which were not readily salable when voted, have by
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the act of the legislature been changed without the consent of the voters for the purpose of making them merchantable and we are indorsing that kind of procedure. The legislature has not only attempted to impair the obligation of a contract but in effect has itself levied a tax for municipal purposes in violation of article XI, section 12, of the Constitution, which provides: “The Legislature shall have no power to impose taxes upon counties ... for county . . . or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and ' collect taxes for such purposes.”
Progress in public improvements is laudable, but such progress should not be made at the expense of justice and fair dealing. The conclusion in this case undertakes to saddle upon the taxpayers an obligation which they did not assume and doubtless would not have assumed. The doctrine of the main opinion is not only unsound but dangerous and far-reaching and I withhold my signature from it.
Rehearing denied.
Preston, J., dissented.