Clough v. Duffy
Before: McFarland
Synopsis
Municipal Corporation—San Francisco—Charter—Bonded Indebtedness—Repair op Streets—Application op Fund—Engineer’s Estimates.—Under the charter of the city and county of San Francisco, where at a special election held for that purpose the proposition of incurring a bonded indebtedness for the general purpose of “ repairing and improving accepted streets of said city and county ” is submitted to the electors and is affirmatively acted on, the board of supervisors in afterwards determining what streets should be repaired and paid for out of the funds realized from the sale of the bonds is not limited to such streets or portions of a street as were included in a report made to them by the city engineer before the proposition.for a bonded indebtedness was submitted, in which such engineer designated certain streets and portions thereof to be repaired and improved, and made plans and estimates of the cost of the work.
Id.—Estimates and Plans not Necessary before Submission of Proposal.—There is nothing in the charter of the city and county of San Francisco providing that the board of supervisors before submitting a proposal for a bonded debt shall require plans and estimates of costs to be furnished by the engineer.
Id.—Duty of Supervisors Cannot Be Delegated.—The power and duty of estimating the amount of the bonded debt necessary, of submitting a proposal to the voters, and of using the products of the bonds for the general purpose “ of repair and improvement of the accepted streets ” rested with the board of supervisors, and it could not be shifted by them to any other person, although they could call for information on the subject to aid their judgment.
McFARLAND, J.
This action was brought in the superior-court of the city and county of San Francisco to obtain a writ of injunction enjoining the defendants Duffy,' Aigeltinger and Eagan, constituting the board of public works of said city and county, and defendant The Barber Asphalt Paving Company, a corporation, from carrying out a certain contract entered into between said parties for improving Sutter Street,, an accepted street in said city and county, from the eastern line of Van Ness Avenue to the western line of Sansome Street. S. W. Horton, as auditor of said city and county, and Charles-A. Bantel, as treasurer, are also made parties defendant; and it is sought to enjoin the former from approving any demand of said Asphalt Company under said contract upon any city fund produced by the sale of certain bonds, and to enjoin the-treasurer from paying any of the funds so produced to said Asphalt Company upon said contract. Upon the final hearing-the superior court made an order denying said injunction,, and from this order plaintiff appeals.
[313]
On the twenty-ninth day of September, 1904, at a special election held in said city and county, there was duly submitted to the qualified electors thereof the proposition to incur certain bonded debts for several municipal purposes, and among others to incur a bonded debt in the amount of $1,621,000 for the repairing and improvements of accepted streets of said city and county. This proposition was carried at the special election by the vote of more than two thirds of the voters; and afterwards the said bonds were duly issued, and of said bonds there were duly sold sufficient to produce more than seventy-five thousand dollars for the purpose of repairing and improving said accepted streets, and said amount was paid into the treasury of said city and county. Afterwards on April 8, 1907, the board of supervisors, upon the recommendation of the board of public works, passed an ordinance ordering the improvement of Sutter Street from Van Ness Avenue to San-some Street, under the supervision of the board of public works and in accordance with plans and specifications filed by the board and approved by the board of supervisors, and appropriating seventy-five thousand dollars for the purpose. In pursuance of said ordinance the board of public works, .after due advertisement and notice for sealed proposals, entered into the contract with the Asphalt Company which is here sought to be enjoined. It is admitted that all of the proceedings, including the special election, leading up to this contract, were regular and
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