The herald., 1896-07-27
SAN D|EGO'S WATER SUITS
Attorney.General Fitzgerald De.
livers an Opinion
BARRED IN STATE COURTS
An Appeal to Institute Quo Warranto
Proceedings Denied
Tho City Officials Will Not Be Ousted for
Their Action In the Matter Of tho
Bond Election

| Attorney-General Fitzgerald yester-
day forwarded his opinion denying the
| application Of A. M. McConoughey of
San Diego to institute quo warranto
proceedings against the city Of San
Diego and it's officers in the matter of
the water bond election held there on
June 9th, says the San Francisco Chron-
| icle Of Saturday. Thus the Southern
| California Mountain Water company
wins another victory over it's antagon-
lists in fight that has been bitterly
waged for nearly a year.
The company was the successor Of the
Mount Tecarte Land and Water COM
pany. and projected a scheme to supply
the city with water. 1t was proposed
to build complete and deliver to the city
water distributing system, furnishing
perpetual supply of 1000 miners inches
per day, and to receive in exchange the
bonds Of the city to the amount of ST.
$4,000. The matter was laid before the
city council and a resolution obtained
authorizing the making of a contract
and submitting the question to the peo-
pie for ratification.
Soon after this had been done the Con-
solidated Water company, having the
franchise to supply water to consumers
in San Diego, attempted to enjoin the
proceedings, charging wholesale bribery
on the part Of the projectors. The prop
osition was nevertheless submitted to
the people on June 9th, and by large
vote the issuance of the bonds was au-
thorized. A bitter fight was waged
throughout the campaign preceding the
election, the opposition companies using
every means possible to prevent a fa-
vorable decision by the people, The
water system to be constructed is not
1or municipal purposes only but for irri-
cation as well. The city obtains no title
10 the sources or fumes. but the COM
pany, under its contract is to deliver the
water to the city's distributing system.
When the result of the election was
announced A. M. McConoughey made
application to Attorney-General Fitz-
ceedings. p-o
follows: -- :" as
have carefully considered your an
pilcation for leave to sue in the proposed
case OF People, ex rel McConoughev. We
the City Of San Diego ct AL, and after a.
.norough examination of the law bear
ing upon the questions presented bv
your proposed complaint, I am 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
complaint is fourfold: First, to contest
the validity of the bond election held in
the CITY or San Diego on June 81, 1895, and
to enjoin the issuance of the bonds vot-
eo ror at such election, and ousting the
oeIendants from exercising any of the
franchises In excess of those prescribed
by the laws Of this state; second. to en-
JON the city OF San Diego and it's officers
from proceeding under an alleged lille
gal contract with the Southern Califor
mia Mountain Water company: third to
oust the mayor, auditor, tax collector
ana treasurer and the members of the
common council of the city of San Diego
from office; and, fourth, that the pres
ent charter of the city of San Diego be
declared invalid, and that ii be adjudged
that the city of San Diego has no right
10 exercise the functions of the munich
pal corporation under and by virtue OF
the same.''
IN support OF your prayer for a con-
sent OF the bond election and O. decree
ousting the city of San Diego and it's
officers from the unlawful exercise of a
franchise. you allege certain Irregular
ities IN the proceedings leading UP to
ana attendant upon the election in ques-
ton. These allegations, If true do not
constitute an unlawful, but mere
~ an improper exercise of the city's
franchise. The power to issue bonds for
the purpose for which the indebtedness
in question was created Is conferred
upon the city of San Diego by It's charter
(statutes 1885, page 399); and when the
power to exercise a franchise exists it
is we'll settled that "the manner of it's
exercise cannot be challenged by infor-
nation or quo warranto." If the election
in question was illegal, an action will
lie at the suit of taxpayer to contest
the election and restrain the issuance of
the bonds. Therefore, you have that
remedy.
Gibson VS.. Board of Supervisors (39
Cal. page 359), was case in which a
taxpayer contested bond election, OBJ
tanned q recount of the ballbts and re-
versal of the decision of the board of su-
pervisors sitting as election commits
sioners, when such board had declared
such election lost. Justice Mcfarland,
who delivered the opinion of the court,
said: Counsel for appellant states-al-
though he does not argue the point-that
plaintiff, in his capacity of taxpayer,
had no right to institute the action. It
is clearly the law that if the action of
the board of supervisors had been the
other way, that is, if they had declared
the proposition to issue the bonds car
ried, when in fact it had not been, plain
tiff could have maintained the action.
That Is, taxpayer can, beyond doubt,
restrain an illegal action which would
increase the burden of taxation. 1t is
not so clear, however, when he can COM
pei affirmative action, although it was
held in Hyatt VS.. Allen that he can by
mandamus compel an assessor to assess
property subject to assessment. 1t is
not necessary here to determine whether
the plaintiff would be entitled to main
tain mandamus against the board of
supervisors to compel them to issue the
bonds. We think, however, that as a
property owner and taxpayer he is suf-
ficiently a party interested to prevent
an untrue public official declaration Of
the result of an election on a proposition
to issue bonds and to have the true dec
laration made, whether the real result
of the election be for or against the issu-
ance of such bonds. No other proper
party plaintiff to such an action has
been suggested.
your second ground Of relief, that
the city authorities be enjoined from
proceeding under an alleged illegal con-
tract, is open to the same objection as
your first, viz, that no cause Of action
in quo warranto is shown by the facts
alleged, as the city and its officers are
merely charged with proceeding in an
improper manner to exercise a franchise
which they undoubtedly possess In fact,
this second ground is dependent upon
the first; for your attack upon the con-
ha toiv