Wichmann v. City of Placerville

HENSHAW, J.

This action was at law to recover upon seven bonds issued by the defendant municipality under an act of the legislature entitled, “An act authorizing the common council of the city of Placerville to issue certain bonds for the relief of the fire department of said city,” approved April 3, 1863. (Stats. 1863, p. 166.) The defendant demurred to plaintiff’s amended complaint upon several grounds. The demurrer was sustained, judgment passed for defendant, and plaintiff appeals.

The general demurrer for lack of facts is decisive of this controversy, and is therefore the only proposition which need be considered.

It is undisputed that the city of Placerville was incorporated

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by charter in 1859, and continued as a municipal corporation from that date. The legislature passed an act to reincorporate the city of Placerville, by an act entitled, “An act to reincorpórate the city of Placerville and extend the limits thereof.” (Stats. 1863, p. 211.) The act was approved April 6, 1863, and took effect upon the third Tuesday in April of that year. The same session of the legislature passed the Bond Act above referred to, which was approved April 3, 1863, and by its terms became effective immediately after its passage. The act) reincorporating the city of Placerville was a complete charter, | —not an amendment to the old charter,—and contained the 11 express provision that, “An act entitled an act to incorporate the city of Placerville, passed March 7, 1859, and all acts i, amendatory thereof, are hereby repealed.” The situation!! thus presented is, that the act authorizing the bonds was a power conferred upon the old municipality. By respondent it is contended that the act was in its nature amendatory of the charter of 1859, and that the effect of the act of reincorporation was to repeal the Bond Act as an amendatory act of the old charter, or, more broadly stated, it was a power conferred upon the old corporation, the exercise of which was not conferred upon nor continued to the new corporation; that the power itself therefore lapsed, and could not be exercised by the reincorporated city. Appellant’s contention, upon the other hand, is, that the reincorporation was but a continuation in a new form of the old city, and that all the rights, powers, and duties which belonged to the earlier municipality were continued in full force under the new charter. In support of her contention appellant cites certain cases, each of which has been given careful consideration. No one of these cases, however, bears out appellant’s contention. One and all they have to do—not with the power of a reincorporated town to create a new obligation authority to create which is not included in terms or by necessary implication in its. charter grant of power—but simply with the question of the responsibility of a reineorporated town for the-obligations legally created by its predecessor. In all of these cases it is recognized that the strictness of the common-law rule has been modified, and that such obligations become a legal burden upon the reincorporated city without express provision in the new charter to that effect, and that, such: