Daily Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1876-1884, 1881-06-15
GAS COMPANY vs.. 1osERMAN.

GAS COMPANY vs.. T0BERMAN.
Opinion BY Judge cspulvsd%
In the Superior Court Of Los Ange.
les County, State Of California:
Los ANGELES GAS COMPANY
VS..
J. r. ToBERMAN, MAYOR.
OPINION.
An application has been made to
this Court for . writ Of mandamus,
to Issue to the Mayor Of the city of
Los Angeles, to compel him to sign
q warrant for $518.50, which the
Council of the city Of Los Angeles,
by q vote Of ten Of its members, d..
rected to be drawn In favor Of plain.
tiff for lighting the streets under q
purported contract between plain.
tiff and the city Of Los Angeles.
The CHARGER requires that all war.
rants ordered by the Council should
be signed by the Mayor and coun.
tersigned by the Auditor; the Au.
dltor signed the warrant in quss.
ton, but the Mayor refused to siRn
the same. It appears by the petit
ton herein land the truth Of its al
legations are confessed by the de.
murrer) that on the 9th day OF
March, 1881, the Conncil by a vote
of fourteen out of fifteen OF Its
members, approved and adopted q
draft OF tho contract In question,
and, by the came vote, ordered the
Mayor, the defendant herein, to
sign the same on the part Of the
city. On the 10th of March the
Mayor returned to the Council the
said contract, declining to sign the
same. The Council, by vote Of
eight to five, there being thirteen
members present. ordered the
Clerk to sign the said contract In
behalf of the city. The contract
was thsreupon signed by the Clerk
and the President of said Gas Com
pany, was delivered to the Clerk
for said city and q copy retained by
the plaintiff. The plaintiff, iu
pursuance of said contract,
furnished gas for lighting the
streets for one month, duly pre-
sented bis claim therefor to the
Council and this body, a. above
set forth, ordered the Clerk to issue
the said warrant, which the de.
PENDANT now refuses to sign 40 re-
quired by the charter.
In defense Of his action In the
premises, the defendant urges that
the contract 10 illegal, because the
Mayor was the only one author
lied to sign the contract, and be.
cause II some other person was Or
dered by the Council to sign the
same, ten and not eight members
were required to concur in the
order.
Section S of Article Nv. of the
City Charter provides that "sight
members Of the Council shall be .
quorum to do business"
Section Z Of the some article
says: 1.-THE concurrence OF major.
ity Of a quorum is q sufficient ma.
jorlty to determine any question or
matter other than the final pas
sage of al ordinance, or except
when otherwise specially provided.
The concurrence OF ten members OF
the Council shall be necessary for
the final passage OF an ordinance
appropriating money, and eight for
all other ordinances" Section 10
Of Article XII. provides: "Tsn
members Of the Council shall b.
necessary to pass any ordinance or
resolution, or to do or perform any
other act whereby any debt is ere.
ated and money is appropriated, or
the revenue of the city 10 in any
way diminished" Section Of the
same article provides that "the
City Of Los Angeles shall not be
and is not bound by any contract,
or In any way liable thereon, un-
less the same 10 made in writing
BY order Of the Council, the draft
thereof be approved by the
Council, and the same ordered to
be, and be, signed by the
Mayor, or some other person In be-
half OF the city,
It is clear from the reading Of the
foregoing provisions that the con-
tract between the plaintiff and the
city was legally approved and
adopted by the Council, fourteen
out Of fifteen voting for it. These
made the contract, except that the
Council might order the Mayor or
some other person to sign the same
In behalf of the city. And the
Mayor should have signed 1t, for
no discretion Ia vested In him to de.
cline. It was q mere ministerial
act which he was bound TO perform,
and was not an ordinance or res0-
luton where the charter vests him
with the right Of veto; for 1t is only
where an ordinance or resolution Ii
concerned, that the charter re.
quires should be presented to the
Mayor for his approval and sigma.
ture, and whore discretion Is vested
In him to approve or return the
same with his objections. (Sectiou
II, Article XII, OF charter. No
doubt can be entertained that the
Mayor could have been compelled
to sign the contract by mandamusi
the Council, however, authoriz cd,
by . vote Of eight to i've, the
Clerk to sign 1t. This act Of sign.
ing was no act that "created any
debt aud whereby money was Ap
propriated;" nor wac "ths revenue
Of the city in any way diminished
thereby" nor was 1t the "ina
passage OF an ordinance or resolu
ton appropriating money" The
Council simply ordered that IL
pursuance of Section / Of Article
XII, the Clerk instead Of the May
or should sign q contract already
} adopted by q vote of fourteen II
J one.
It results that the Mayor canno
; evade his duty in this manner, no
can the contract be annulled II
. such q summary and informal way
There are no merits In the demur
rur and the same 10 overruled.