The record-union., 1891-05-07
BURR'S SUITS.
Judge Grant Decides the Special Tax
Election Illegal.
But the Election Should Have Been
Contested, and 1t is Now Too
Late For Relief.

Judge w. II. Grant, of Yolo, who has
been presiding for some time in Depart
ment One of the Superior Court, in Judge
Catlin's absence, rendered an important
decision yesterday in the suit of e. A.
Burr against the Board of City Trustees.
This was one of the reform suits
brought by Burr, and was for the pur-
pose of preventing the payment of the
$4,000 collected by special tax recently to
pay the salaries of the policemen who
worked for nothing during the year end
ing April, 1890.
The case was argued last week by
Messrs. Dunn and Holl for Burr, and
Grove i. Johnson and L. G. Hart for the
city. Burr's attorneys held that the Act
under which the special tax was levied
was unconstitutional; that the Trustees
had not abided by the provisions of the
Act in issuing their proclamation, and
they argued for a writ of certiorari by
which they could inquire into the trans
actions of the Trustees.
Counsel for the Trustees argued that
the issuance Of writ Of certiOrari was
not the proper manner in which to get at
the case and maintained that the election
fsuOulu nave DGGD contested.
Judge Grant took the case under ad-
visement, and on yesterday decided that
although the special tax was Illegal,
1t was now too late for relief. The
election should have been contested, he
said, and therefore the certiorari proceed
lngs were out of order.
THE DECISION.
In the decision the court says: "In the
very short space Of time / have had in
W 70 Il fl,a I =
been able to reach any conclusion which
is satisfactory to myself, but the follow
ing conclusions seem to me supported to
some extent by the authorities cited,
though | am far from satisfied as to their
accuracy. City Boards of Trustees and
County Boards of Supervisors have vari-
GUS powers conferred upon them by
statute, some judicial, some ministerial,
and some legislative, and the line where
one class of powers ends and another
begins is often obscure and difficult to de-
termine.
THE petitioner claims that the respond
ents were, in the matters set out and
complained of in his complaint, acting ju-
dicially, were exercising judicial func-
tiOns, and that in so doing they exceeded
their jurisdiction, and that the writ was
properly issued TO review their acts. He
contends that before passing the Ordi-
nance leVylng the special tax, which is
set out at length in the complaint, they
must judicially determine all the facts
specified in the Act of the Legislature
which authorizes the levy of the special
tax, viz, that the city of Sacramento has
population of more than 26,000 and less
than $4,000 inhabitants; that the city owed
an Indebtedness incurred or contracted
In the years 1889 and 1890; that they had
made proclamation Of an election at
which the question of paying said in
debtedness was submitted to the qualified
electors of the city; that said proclama-
ton stated the amount
CLAIMED TO BE DUE,
And for what services the debt was in
Cured; that the ballots used for such
election contained the words For the
payment-yeS," and For the payment
no." as required by the said Act; that the
result of said election was that two-thirds
OF the votes cast upon that question were
IN the affirmative, and that all these mat
ters must be determined to exist as con-
ditions precedent to the passing Of the or
dlnance levying the special tax. and that
this act OF so determining the existence
OF these facts is in its nature judicial.
The argument Is not without weight, and
am inclined to think it is sound but un-
fortunately this conclusion does not help
US out Of the difficulty. If it is true that
the Board of Trustees We're exercising
Judicial functions in determining these
matters, is 1t not equally true that in so
doing they were acting within the scope
OF the powers conferred upon them by
the Act authorizing the submission of the
question to a vote of the people?
1T seems to me that they were, and
while it is true that some of the cOnclu-
sions they reached are not supported by
the facts, the error is one which is COM
mitted within the scope of their jurisdic-
ton, and cannot be reviewed by this writ.
The petitioner contends that there is no
appeal from the acts of the Board of
Trustees, of which he complains, and this
is conceded; and he further says that there
Is no plain, speedy or adequate rem
edy, and in this / also concur, for if he
has any l confess I don't know what it is.
in this proceeding the ballots cast at the
election could not be brought up and re-
counted, even if it be held that the writ
was properly issued, and it seems to me
that the only plain, speedy and adequate
remedy that petitioner ever had was an
action to contest the election under the
provisions of Section iii of the Code OF
Civil Procedure. 1t is held by oul
supreme Court in the case of Gibson VS..
The Board of Supervisors of Trinity
County $50 Cal. S59), that that section
authorizes contest in such cases, and if
that course had been pursued it seems to
me that 1t would have furnished ample
protection to this petitioners interest.
IT WAS ILLEGAL.
"Conceding the matters set up in the
petition to be true, am of the opinion
1hat the election was illegal, and that il
ought not to stand. The ballots were not
printed in accordance with the provisions
of the Act authorizing the submission of
the question to a vote of the qualified elect
ors. and the manner in which they were
printed was such as manifestly increased
the vote in favor of the proposition over
what IL would have been had the require
ments Of the Act been followed. Doubt
less the men who have given their sery-
ices 10 the city, under the belief that they
were regularly employed, should be paid.
but that fact cannot Justify the issuance
of illegal ballots or the resort to other
means than those marked out by the
statute to accomplish that end. however
desirable. 1t is indisputable that some
~yay should be provided TO review, super
wise and control the acts of such boards,
and TO exercise salutary check upon
them, even while they are acting within
The scope of their authority, but in my
Judgment a writ of review will not reach
the case at bar.
1t follows that the writ was improvi-
IDENTIFY issued and must be quashed."
THE EXTRA DEPUTIES.
Another of Burr's suits-that directed
against the extra clerks employed by the
various county officers by authority OF
the Board of Supervisors-came up for
hearing before Superior Judge Van Fleet
yesterday.
The case was argued at length by
clinton White for Burr, and Elwood and
a. y. Bruner for the clerks and Super
NlSors. Noluminous authorities were
cited on both sides OF the question, Mr.
White maintaining that the Supervisors
had not the power to allow the extra
deputies, and the Burners arguing that
N4Nz~ "a fNfsia TYNV Il IT,