The San Francisco call., 1896-07-25
The Attorney-General Forbids a
Suit by Opponents of the
Project.
REASONS GIVEN AT LENGTH.
He Expresses the Opinion That the
Kickers Have No Valid Ground
of Action.

that the city's water supply might be i'm
proved and increased. The city officers,
as we'll as the leading business men and
the moneyed element of the ''bay and ch-
mate" port, seemed to be IN favor of the
measure by an overwhelming majority.
1t was only majority, however. though
very large one, and the opponents of the
project started in to fight it tooth and
nail. A number of private suits at law
were instituted by parties opposed to the
issuance of the bonds, and for a time
most intricate legal tangle seemed immI-
nent.
At this interesting juncture things we're
greatly simplified by all of the protesting
residents joining their suits in one action
entitled The People ex relatione A. M.
McConoughey against The City of San
Diego. Mr.. McConoughey was to act as
attorney for the bond-opposing elem ent,
while City Attorney Doolittle and Messrs.
Delmas d Shortridge took up the defense
of the bothered southern port.
Before the action could be commenced
McConoughey made the customary appli-
cation to the Hon. W. +. FITZGERALD, ask
ing him as Attorney General for leave to
open fire. But the eAttorney-General would
have none OF the proposed suit, denying
the desired permission in the following
self-explanatory communication:
SAN FRANCISCO, July %, 1896.
a. M McCon0uQhey, ESQ, San DIEGO, CdI.-
DEAR SIR: l have carefully considered your
application for leave TO sue in the proposed
case OF People ex rel McConoughey VS.. The
City of San Diego ct al, and, after thorough
examination of the law bearing upon the ques-
tions presented by your proposed complaint
of the opinion that the facts alleged by
you do not warrant interference IN this matter
by the people.
The relief sought by your proposed com
plant is fourfold, viz : First-To contest the
-afo ola Iaald
San Diego on June 81, 1896, and TO enjoin the
issuance of the, bonds voted for at such cleo
tion, and ous6ng the defendants from exer-
cising any of the franchises in excess OF those
prescribed by the laws of this State"
Second-To enioin the City OF San Diego and
It's officers from proceeding under alleged
Illegal contract with the Southern California
Mountain Water Company.
Third-To GUST the Mayor, Auditor, Tax
Collector and Treasurer and the memb bers of
the Common Council of the City of San Diego
from office; and
Fourth-That the present charter of the City
of San Diego be declared invalid, and that it
be adjudged ''that the City of San Diego has
no right to exercise the functions of the mu-
nieipal corporation under and by virtue of the
same" prayer OF proposed complaint, subd g..
l will consider these in the order stated:
First-In support OF your prayer for a contest
of the bond election and a decree ousting the
City OF San Diego and its officers from the un-
lawful exercise of a franchise you allege
certain irregularities in the procee dings lead
ing up to and attendant upon the election in
question.
These allegations, if true, do not constitute
an unlawful, but merely al improper exercise
of the city's franchise. The power to issue
bonds for the purpose for which the indebted
ness In question was created is conferred upon
the city of San Diego by its charter Statute of
1889. page 399), and when the power to exer-
else franchise exists it is well settled that
"the manner of its exercise cannot be chal-
lenged by information or quo warranto"
State VS.. the city of Lyons, 81 Iowa, 432; State
VS.. Evans, 36 Am. Dec. (Arkansasl, 46S; Peo-
pie ex rel. Mcdonald VS.. Board OF Supervisors
of Alcona County (Michigan) 81 n. w. Rep.
liza; People VS.. Cooper (Illinoisl, % N E.
Rep. 879 State eX rel. VS.. Hannibal and R.
Co., 81 Mo- Appeals, 1861
If the election in question was Illegal an ac-
ton will lie at the suit of taxpayer TO contest
the election ana restrain the issuance of the
bonds. Therefore, you have that remedy
(Gibson VS.. Board of Supervisors, 80 CRl 359
and cases cited; Skinner VS.. City of Santa Rosa
107 Cal, 464; Rowland VS.. Board of Supervis-
ors l09 CAL, 1922
Gibson VS.. Board of Supervisors, supra, was a
case in which taxpayer contested a bond
election, obtained recount of the ballots and
areversal of the decision of the Board of Su-
when such board had declared the election
lost. Justice Mcfarland, who delivered the
opinion OF the court, said, at page 366:
Counsel for appellant sta tes-although he does
not argue-the point that plaintiff in his capacity
OF taxpayer had no right to institute the action.
It's clearly the law that if the action of the board
had been the other way-that is, IL they had de-
clared the proposition 10 issue the bonds carried,
when in fact it had not been-plaintiH could have
maintained the action. (Schumacker VS.. Tober-
man, 56 Cal. sos; Andrews VS. Pratt "a Cal
309; Maxwell VS.. Supervisors, SO Cal, 389: Eos,
ter Coleman, 10 CAL, 27s) That is, tax
payer can, beyond doubt restrain any illegal
alton. IT is not so clear, however, when he can
compel afnrmative ac ion. although ii was held in
Hyatt VI. Allen, "a Cal, 800, that he can by man
damus compel an Assessor to assess property sub
lect TO assessment 1t is not necessary here to de-
termine whether or not the plain in would be en-
titled 10 maintain mandamus against the Board of
Supervisors to compel them issue the bonds.
we think however, that, as a property-own and
n ~ cfadt tn
prevent an untrue, public official declaration of
the result OF an electio on a proposition 10 issue
bonds and 10 have the true declaration made
whether the real result Of the election be for or
against the issuance of such bonds No other
proper party plalntin TO such action has been
suggested.
2. Your second ground of relief, that the
city authorities be enjoined from proceeding
under an alleged illegal contract is open to
the same objection your first viz: that no
cause OF action in quo warranto is shown nv
the facts alleged, as the city and it's officers
are merely charged with proceeding in an i'm
proper manner to exercise franchise which
they undoubtedly possess. In fact this sec
ond ground is dependent upon the first; tor
your attack upon the contract in question can
only be sustained by nullifying the election
Furthermore, if the contract is illegal in the
particulars charged ii is void and no liabili ty
against the city or any taxpayer of the CITY
can arise under it. For that reason there is
nothing to restrain and no cause of action is
stated. Linden VS.. Cass As Cal, 173; Mccoy
VS.. Briant, 50 CAL, 246; Merriam VS. Board of
Supervisors, ~ Cal, 5l7)
and f. VIII consider the third and fourth
grounds OF relief sought together, as both are
predlcated upon the same alleged facts, viz
the invslidity OF the proceedings leading to
the adoption of the present charter of the city
of San Diego.
II is sufficient to say that the charter of San
Diego Is now res adjudicata. The facts set
forth in your proposed complaint and relied
upon by you as showing the irivalidity of this
charter We're all involved in the case OF
People ex rel. Attorney-Ge neral vs. Douglass
Gum and the city of San Diego, case No. 512l
in the Superior Court of San Diego County
and were all decided adversely to your conten-
tion. That case was decided in 1891, and has
never been appealed from. 1t is, therefore,
final This question cannot be again liti-
gated. People VS.. Board OF Supervisors, 27
Cal, 655; Boston VS.. Haynes 33 Cal, 33
Jackson Lodge, 80 Cal 28.l
Furthermore, the cause of action to oust the
city officials and the cause of action to annul
the city charter cannot be Joined with the