Heilbron v. Sumner

SHAW, J.

This is an appeal by the plaintiffs from a judgment given in the court below upon an agreed case submitted to it, as provided by sections 1138, 1139, and 1140 of the Code of Civil Procedure.

The plaintiffs are members of the common council of the city of San Diego, and the defendants are the members of the board of water commissioners of said city.

The matter submitted for decision was the question whether the common council of the city, or the board of water commissioners of the city, is empowered to expend a certain fund in the city treasury obtained by the sale of bonds issued by the city, pursuant to an election authorizing the same, to raise funds for the acquisition, construction, and completion of a dam on Cottonwood River at a place known as Barrett dam site, in the county of San Diego, but outside of the city of San Diego.

The dam was to be made for the purpose of impounding water. Apparently the city is carrying on a system of waterworks for the distribution of water within the city for municipal, domestic, and other uses, and the said dam is to constitute a part of that system. The ease is argued by both parties on that theory and we will assume it to be true, although the agreed statement does not so declare.

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We are of the opinion that the power to erect said dam or contract for the erection thereof and expend the said sum for so doing is lodged in the common council of the city and not in the board of water commissioners.

The bonds were issued under the provisions of the Bonding Act of 1901. (Stats. 1901, p. 27.) This act provides a method of procedure for the calling of an election to submit the question of the issuance of the bonds to popular approval

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and authorizes the issue thereof in case the election is favorable thereto. Section 9 of the act, as amended in 1907 (Stats. 1907, p. 611), provides, that “in cities, towns or municipalities operating under a charter, heretofore or hereafter framed under section 8 of article XI of the constitution and providing for a board of public works all the matters and things required in this section to be done and performed by the legislative branch of the municipality shall be done and performed by the board of public works of such city, town or municipality, and, in case such charter also prescribes the manner of letting and entering into contracts for the furnishing of labor, materials or supplies for the constructing or completion of public works or improvements, the contracts therefor shall be let and entered into in conformity with such charter.”