Donahue v. Graham

Myrick, J.: For the reasons given by the Court, in McDonald v. Patterson, 54 Cal. 245, the demurrer is sustained.

Morrison, C. J., and Boss, Thornton, and McKee, JJ., concurred.

McKinstry, J., dissenting: I dissent. Article xi. of the Constitution is headed, “Cities, Counties, and Towns.” Sections one, two and three relate to counties; Sections four and five, to counties and “ townships;” Sections nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen, to cities, counties, towns and townships. Sections six, seven, eight and nineteen, treat especially of cities; in which are included the municipalities [278]known as “ cities and counties,” and “ towns.” It is apparent that the sections last enumerated, applying, as they do, to the same subject-matter, are to be read together as providing a scheme or system. The separation into sections is arbitrary, adopted for convenience of reference, and by it no force is added to the suggestion that one section is to be given independent effect, without any consideration of the language of the other sections which 'constitute the context. Doubtless the provisions of the Constitution are “ mandatory and prohibitory.” But it is necessary, in the first instance, to ascertain—as well by reference to other provisions bearing upon the subject, as by resort to all other means within our reach—the meaning of a particular provision of the Constitution. Only thus can we place ourselves in a position to determine what it is that is commanded or prohibited by such provision.

The first sentence of the nineteenth Section of Article xi. of the Constitution of the State reads: “No public work or improvement of any description whatsoever shall be done or made, in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable, or may be assessed, upon private property by special assessment, unless an estimate of such cost and expense shall be made, and an assessment, in proportion to benefits, on the property to be affected or benefited, shall be levied, collected, and paid into the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed.”