Board of Commissioners v. Board of Trustees

California Supreme Court Nov 26, 1886 No. No. 11560Published

Before: McKinstry

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Holding. The court held that the act of 1872 was not repealed by the adoption of the 1879 Constitution, as the constitutional prohibition against delegating municipal powers to special commissions is prospective and does not invalidate prior legislation.

Issues

Whether the act of 1872 was repealed by the adoption of the 1879 Constitution.
Whether the prohibition in section 13, article 11 of the Constitution against delegating municipal powers is prospective or retrospective.
Whether the petitioners have the legal capacity to maintain the action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The prohibition is prospective and applies to the legislature created by the constitution, in which the prohibition is found, seems too clear for argument.”

“Our conclusion is, that the act of 1872 is not inconsistent with the constitution, and that it will remain in full force until altered or repealed by the legislature.”

Synopsis

Appeal from a judgment of the Superior Court of Sacramento County.

On the 25th of March, 1872, the legislature passed an act entitled “An act to provide for the redemption of the funded indebtedness of the city of Sacramento,” which required the board of trustees of the city to levy an annual special tax of not less than one tenth of one per cent, and not exceeding thirty-five cents on each hundred dollars, upon all taxable property within the city, for the purposes specified in the act. In order to carry the same into effect, the act created a board of commissioners known as the Board of Commissioners of the Funded Debt Sinking Fund of the City of Sacramento, and provided that the board of trustees, in levying the special tax, should be governed by the request in writing of the board of commissioners, and should fix the levy at such a rate as might' be requested by them, within the limits fixed by the act. On the 8th of February, 1886, the board of commissioners passed a resolution requesting the board of trustees to levy a tax of ten cents on the hundred dollars, to be collected and paid into the funded debt sinking fund. The trustees refused to make the levy, whereupon the present proceeding was brought to compel them so to do. The further facts are stated in the opinion of the court.

McKinstry, J. This is an application of the board of commissioners of the Funded Debt Sinking Fund to compel the board of trustees of Sacramento city, by mandate, to levy a certain tax which is ordered to be levied by an act of the legislature passed in 1872.

The court below issued an alternative writ, and the city trustees made a response not denying any fact set up in the petition and affidavit, but setting up matters of law only as a response to the alternative writ. The [312]court overruled the legal objections raised, and made the writ absolute. From this the trustees appealed.

Appellants contend the petition is fatally defective, in that it does not appear therefrom that petitioners have not a plain, speedy, and adequate remedy at law; and in that it does not appear therefrom that defendants have any municipal functions to perform.

The facts alleged in the petition show that there is no other plain, speedy, or adequate remedy. The powers and duties of the defendants are declared and determined by a public statute, of which we take notice.

Appellants further contend that petitioners have no legal capacity to maintain this action. The petitioners are parties “ beneficially interested ” within the meaning of section 1086 of the Code of Civil Procedure. (County of Contra Costa v. Board of Supervisors, 26 Cal. 641.)

The main contention of appellant is, that the act of March 25, 1872 (Stats. 1871-72, p. 546), was repealed on the adoption of the constitution of 1879, by reason of the clause in section 1, article 22, of that instrument, which reads: “The provisions of all laws inconsistent with this constitution shall cease upon the adoption thereof.” It is said that the provisions of the act of 1872 are “inconsistent” with section 13, article 11, of the constitution. That section reads: —

“ The legislature shall not delegate to any special commission, private corporation, company, association, or individual any power to make, control, appropriate, supervise, or in any way interfere with any county, city, town, or municipal improvement, money, property, or effects, whether" held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever.”

That the prohibition is prospective and applies to the legislature created by the constitution, in which the prohibition is found, seems too clear for argument. The prohibition became operative with the rest of the con

Board of Commissioners v. Board of Trustees

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