Irwin v. Exton

CHIPMAH, C. Oceanside is a city of the sixth class; on May 8, 1894, it voted thirty thousand dollars of bonds, under the act of March 19, 1889 (Stats. 1889, p. 399), and the acts [624]amendatory thereof (Stats. 1891, pp. 84, 132, and Stats. 1893, p. 61), for the purpose of acquiring water rights and the construction of water-works to supply the city and its inhabitants with water; bonds were printed but were never executed or sold, and it is conceded by both parties that they are void and therefore cannot be legally issued. After the election the city proceeded to levy an annual tax, under the provisions of the act, to raise the funds with which to pay the interest on the bonds and provide a sinking fund to pay the principal at maturity; as the result of said levy it is stipulated that “there is now in the city treasury ..... for taxes collected on account of said bonds, .... in the fund known as water bond fund No. 2, about the sum of seven thousand nine hundred and ninety-nine dollars”; and that, unless restrained, defendants “will transfer from said water bond fund No. 2, to the water-works improvement fund, or to some other fund, moneys of said water bond fund No. 2, and will pay and order paid out of said moneys now in or hereafter taken from said last-mentioned fund, for the services of the engineer employed under the aforesaid resolutions”—i. e., certain resolutions of the said defendants—the sum of eight hundred and forty dollars; plaintiff is an elector and resident property-holder of said city, but whether he paid into the treasury any of said sum collected as taxes does not appear; he is not seeking to recover any of this fund as paid by him; he seeks only to restrain defendants from transferring any of the money now in the said water bond fund to any other fund and to restrain defendants from using any of said money for the purposes threatened by them. The court entered judgment for defendants denying the injunction, and the appeal is from this judgment.

Counsel discuss many propositions which we do not deem it necessary to consider. The validity of the bond issue is not necessarily raised by the pleadings, and we do not pass upon that question. Both parties, however, concede that the bonds are invalid, and for the purposes of this case they will be so regarded. Appellant devotes much attention to the provisions of the statutes relating to the transfer by the municipal authorities of money under their control from one fund to another fund; and also to certain requirements of the municipal corporation [625]