The herald., 1896-04-14

in question were added to the code long
after that decision; and it is manifest,
for their terms, that they were intended
to apply in all cities, without exception.
The officers therein mentioned are CIV
en- names not corresponding to those
used in the system or plan under
which cities may" under the preceding
section, "be organized and governed"
They are designated by general terms,
StudiOusly chosen so as to include cities
of diverse forms of government, and
organized in a manner different from
that provided for in the preceding sec
tions of the title. The language so used
Enthusiastically negatives any intention
to confine the operation of those sec
tions to cities organized under the
code.
But, beyond this, these sections can
have no effect whatever, unless they ap-
ply to cities formed before the adoption
of the code. These provisions relate
only to cities having an outstanding in
debtedness on January /, 1880. We are
bound to take judicial notice of the fact
that no city was ever organized under
the code; and, as no such organization
could take place except by act of the
legislature (sec. 4356) we must presume
that the legislature was aware, when it
enacted the sections in question, that
no such organization had been had. We
cannot suppose that the legislature in
IeHueu 10 pass al ACT WHICH never Couiu
have any effect whatever; and we must
therefore hold that these sections ap-
ply to all cities, without exception.
The argument Of council as to certain
other statutes (o be presently re-
ferred to) raises the question
whether these sections are not
in conf conflict with section, section Is
which forbids any city to Incur any
Indebtedness or liability in any man
ner or for any purpose, exceeding in
any year the income and revenue
provided for it for such year, without
the assent of two-thirds of the quail
fled electors thereof voting at an cleo
tion to be held for that purpose" But
we do not think that there is any such
conflict. 1t is true that the sections in
question do not provide for obtaining
the assent Of the voters, but no such as
sent was necessary. The only indebt-
edness authorized by these provisions
to be funded or refunded is such as
existed prior to the time when the con-
stitutional provision in the ques-
tion took effect; merely to
fund or refund an existing
debt is not to "incur an indebtedness
or liability" A bond is not an indebted
ness or liability-it is only the evidence
or representative of an indebtedness;
and a mere change in the form of the
evidence of Indebtedness is not the Gre
alton of new indebtedness within
the meaning Of the constitution. (Opin-
ion of Judges, 81 Me-, 602; Hotchkiss
VS.. Martin, 12 Mott, 21s; Comrs. VS..
Comrs., 26 Kans., 1S1, 201; Poughkeep-
sic VS.. Quintard, 65 Hun, 14l.) The
case of Doom township VS.. Cunins, H2
u. S., 366, appears to be opposed to this
view; but we are unable to assent to
the reasoning of the court in that case
and think that the correct rule is stated
in the dissenting opinion. Moreover,
the state had no more power, by
adopting a constitution, to impair the
obligation of the contracts by which
cities had previously incurred indebt-
edness, than it had to impair it by Il
mere statute. 1t Is true that to take
away a remedy previously allowed
does not always impair the obligation
cf the contract. But a reasonably ef-
ficient remedy must be left; and in a
majority of cases the only way III
which municipalities can pay their
debts is by issuing funded bonds.
Even then, if the state had power to
forbid the funding OF prior indebted
ness, except upon new and perhaps
impossible conditions Ca concession
which we are not prepared to make),
it certainl-- will not be presumed, in
absence of a clear and explicit declara-
ton to that effect that the trainers
Of our state constitution intended such
u result. The clause in question does
not necessarily require such an inter-
pretatiOn; and we are of the opinion
that it does not apply to the funding
of onV then existing indeb:eile-s.
1t follows that, as to any indebted
ness of the city of Los Angeles outstand-
ing on the list day of January, 1880, sec
tions 4445 to 4449 of the political code
provides the methods to be pursued in
funding or refunding the same. The pc
fjfiOn n mr. nj ~
not allege that any of the Indebtedness
in question was outstanding on that day
and we cannot presume in favor of the
pleader that such was the fact 1t is
therefore necessary to inquire whether
the bonds in question are authorized by
any other statute.
On March Is 1888, an act was passed
(Stats. of 1889, p. S7Oy authorizing the
governing body of every municipal cor
poration, other than cities of the first
class, to fund or refund any indebted
ness of the corporation by vote of
four fifths of their number. That act
authorized the issue Of bonds to be ex
changed for any existing Indebtedness
or to be sold for money to be applied
to the payment of such Indebtedness.
1t is contended that this act violates
the provisions of the constitution
against special legislation. But there
can be no question that the act classi-
~ itAS Ilutllclpdl COTpOTdtlOnS Is COHStl-
tutional Pritchett VS.. Stanislaus coun
ty, 70 Cal, 310), and that in matters per-
tanning to municipal organization the
legislature may make different regula-
tions for the different classes so created.
pasadena VS.. Simpson, 81 Cal, 249)
The subject matter of the act in ques-
tion--the funding of municipal indebt-
edness-is peculiarly matter pertain
ing to municipal organizations, and still
more peculiarly matter as to which
cities of large population require diff
fcrent provision from that suitable to
cities or towns of small population"
The act is. therefore, not obnoxious to
that objection.
1t is also contended that the act is
unconstitutional in failing to provide for
submitting to the voters the question
is true that, as to any new Indebtedness
submission must be had; but it does
not necessarily follow that any act of
the legislature on that subject must
contain that requirement 1t is. we
think, sufficient that, by any legisa-
ton, authority is given to the municipal
government to call such an election, and
that the election is actually called and
held. Such authority is expressly
given by sections 40, 1877. 1893, 1893 and 200
of the charter of Los Angeles Stats of
1883, p. 455), and, as we have seen, a
valid election was actually called and
Ii, ID in this case. Indeed, it is probable
that the constitutional provision re-
quiring such election is, of itself sufii-
clent authority to the municipality for
holding it, at least when read in con-