Casper v. City & County of San Francisco

SHENK, J. This is an appeal from a judgment for the defendants in an action to enjoin the issuance and sale of certain sewer bonds of the City and County of San Francisco.

At an election held for the purpose in 1928 a bond issue was authorized in the sum of $2,200,000 for the construction, and extension of the sewer system in the City and County of San Francisco. This construction and extension program was made applicable to five different sewer projects, one of which was to be on “Alemany Boulevard (Islais Creek), from Mission Street to the vicinity of Revere Avenue and Industrial Street”. Contracts were let on all five projects, four were completed and as to the remaining project, designated the fourth, a concrete sewer was built to the intersection of Revere Avenue and Industrial Street. To carry on the work thus far done bonds in the sum of $1,809,000 were issued and sold. The city and county now proposes to construct an extension of the Alemany Boulevard or Islais Creek sewer from the intersection of Revere Avenue and Industrial Street toward San Francisco Bay as far as Hudson Street, a distance of some 3,100 feet and to issue and sell bonds of said issue for that purpose in the remaining sum of $391,000.

The plaintiff, a taxpayer, commenced this action to enjoin the issuance and sale of the bonds in the remaining sum on the asserted ground that the purposes for which the entire [378]bond issue had been authorized had been fully accomplished, and that authority in the municipality was therefore lacking to construct the improvement now proposed from the proceeds of the remainder of said bonds.

The issues as framed by the pleadings presented the question whether the bond proceedings from their inception were so limited and restricted that the purposes of the bonds as voted had been fully accomplished or whether such proceedings were sufficiently flexible to permit the construction contemplated.

The trial court considered the undisputed facts, the documentary evidence showing the record of the bond proceedings from the beginning, and the oral evidence as to the circumstances surrounding the particular proposed improvement. The court found, among other things not necessary to be related, that it was not true as alleged by the plaintiff that the improvements described in the proceedings leading up to the issuance and sale of the bonds had been completed, but on the contrary “that said work had not been fully completed or constructed and that there yet remains unfinished certain sewer construction work to be done and performed in the vicinity of Revere avenue and Industrial street, to-wit, the extension of said Alemany Boulevard (Islais Creek) sewer for a distance of approximately three thousand one hundred (3100) feet”; that “it was always the intention of the city and county of San Francisco to fully extend said Alemany Boulevard (Islais Creek) sewer from Mission Street to a point as close to the bay as possible, and that it was not the intention of said city and county of San Francisco to construct said Alemany Boulevard (Islais Creek) sewer only to the intersection of Revere Avenue and Industrial street and no further”. The court further found that all the proceedings leading up to the proposed issuance and sale of the remainder of said bonds were regular and valid and that the improvement proposed was necessary to protect and save and make more efficient the sewer heretofore constructed from Mission Street easterly and known as Alemany Boulevard or Islais Creek sewer.