Thomason v. Ruggles

California Supreme Court May 1, 1886 No. No. 11184Published

Before: McKee, McKinstry, Myrick, Ross, Sharpstein, Thornton

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Holding. The court held that the 1884 constitutional amendment was validly adopted and that the 1885 street improvement act is a valid general law applicable to the city and county of San Francisco. Consequently, the prior 1872 street improvement act was extinguished by the 1879 Constitution and was not revived by the subsequent constitutional amendment.

Issues

Whether the 1884 constitutional amendment was validly adopted despite the failure to enter the full text in the legislative journals.
Whether the 1872 street improvement act was repealed by the 1879 Constitution and revived by the 1884 amendment.
Whether the 1885 street improvement act is a valid general law applicable to the city and county of San Francisco.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When, therefore, the constitution declared, as in effect it did declare, that the act of 1872 should cease, it did away with it—it extinguished it—as thoroughly as would be the legislative repeal of a prior act”

“we are of opinion that the amendment was properly passed.”

“the state, acting through its legislature, and in the exercise of its authority over streets, lanes, and alleys, delegated to the authorities of the city and county, as it had the right to do, the authority to pursue the mode therein pointed out”

Synopsis

Street Work—San Francisco—Certain Acts Construed—Constitutional Law.—The application was for a writ of mandate to compel the defendant, as superintendent of streets of the city and county of San Francisco, to enter into and execute a certain contract for curbing and paving a portion of a street in the city and county, and constructing sidewalks thereon. The proceedings for the work were taken under the act of April 1, 1872, amending the charter of the city and county. At the time the demand was made on the superintendent to execute the contract, no assessment had been levied or collected for the proposed work, as required by section 19 of article 11 of the constitution of 1879. Held by MyricJc, J., Boss, J., and Morrison, O. J., that the act of April 1, 1872, so far as it authorized the doing of street work without a previous levy and collection of an assessment, was repealed by section 19 of article 11 of the constitution, and was not revived by the amendment of November 4, 1884, dispensing with the necessity of such previous levy and collection of the assessment; that the amendment was constitutionally adopted, and that the act of March 18, 1885, providing for street work in municipalities, and repealing the act of March 6, 1883, was a general law within the meaning of the constitution, and was in force in the city and county of San Francisco.

Id. —Held by McKee, J., that the act of April 1,1872, was repealed by section 19 of article 11 of the constitution; that the amendment of 1884 was not constitutionally adopted, because it had not been entered at large on the journals of the legislature, and that consequently the act of March 18, 1885, was invalid, and that the act of March 6, 1883, was in force in the municipalities of the state.

Id. —Held by McKinstry, J., and Sharpstein, J., that the act of April 1,1872, was not repealed by the constitution; that the act of March 18, 1885, was not a general law within the meaning of section 6 of article 11 of the constitution, and that the judgment should be afSrmed for insufficiency in the petition.

Opinion — Myrick

Myrick, J. On the 1st of April, 1872, the legislature passed a law relating to street improvements in the city and county of San Francisco. This act, from section 4 to section 13 inclusive, provided a general plan of street work by contract, such contract to be entered into and the work peformed before the collection of the money. This act was a portion of the charter of the city and county, and was in force until the constitution went into effect, January 1, 1880. That constitution contained the following clause, viz.:—

“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.” (Art. 11, sec. 19.)

It will thus be seen that after January 1, 1880, no public work or improvement chargeable upon private property by special assessment could be done, or contract therefor made, until an assessment had been levied, and the amount of the cost and expense had been collected and paid into the treasury. This provision of the constitution seems to have stricken deeper than merely prohibiting the doing of work; it declared that until the collection of the money, no contract for doing the work could be let. As the entire system provided for by the sections of the act referred to (4 to 13 inclusive) seems to have reference to the letting of contracts before assessments and collections, did not the entire system fall together, as well that portion which provided for resolutions and declarations of intention, as those portions which were in direct antagonism ?

[467]The constitution, contains the following clause:—

“The provisions of all laws which are inconsistent with this constitution shall cease upon the adoption thereof.” (Art. 22, sec. 1.) The effect of this clause upon the act of April 1, 1872, is one of the questions presented to us, it being claimed on one side that it in effect repealed the act, and on the other, that the operation of the act was merely suspended until the constitutional amendment hereinafter referred to. We shall consider this question further on.

Thomason v. Ruggles

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Synopsis

Opinion — Myrick

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Concurrence — McKee

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Concurrence — Ross

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