The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-05-10

We shall assume, therefore, that the
highway involved in this case is sui
ject to the same laws which govern
highways in general throughout the
State of California, and that it's legal
aspect has in no way been altered or
impaired by the passage Of the Act re-
ferred to.
That a county has the general power
to issue bonds for road purposes, there
can be no doubt In Subdivision IL OF
Section % Of the County Government
Act it is provided that ANY county
having an outstanding Indebtedness,
evidenced by bonds or warrants there
of. may refund such Indebtedness and
issue bonds of the county therefor, and
any county may incur or refund bond
| ed Indebtedness for any purpose for
which the Board of Supervisors are
herein authorized to expend the funds
of the said county"
And in People vs. Mariposa County
| 80 Cal, 15), which was a case in which
| a Board of Supervisors had created
| bonded Indebtedness for the purpose or
constructing two wagon roads in Mar
| iposa County, the Supreme Court sus-
tanned the order of the lower court II
| tition for a writ of mandate to compel
| the Treasurer of Mariposa County 10
sell and dispose of the bonds according
to law. The question of the power
of the Board of Supervisors to issue the
| bonds was not presented in that case
| but the decision necessarily implies
what disposition the Supreme Court
would have made of it had it been pre-
| scented.
Assuming, then, that the board hao
the power to issue bonds for the i'm
provement, etc, of highways, has 1t
| the further power to include the prop
erty contained within municipalities?
| In stating what is to follow, the fact
must not be lost sight of that the is
suance of bonds for road purposes is
but another form of taxation. The
| law has made provision for the i'm
provement, etc, Of highways, by pro-
viding a direct form of taxation upon
property as well as upon individuals,
and we apprehend that any form of
taxation which would undertake to de-
part from the established laws would
| be an attempt to do indirectly what the
law forbids being done directly, and
| must therefore fail.
Sections 2651 to 2655, inclusive, of the
Political Code contain the law Of this
State on the subject of highway taxa
ton. They provide for setting apart
from the property road tax collected
| from all sources a sum not exceeding
30 per cent. Of the aggregate for gen
eral county road purposes, to be known
as the general road fund of the county,
| from which sum such amounts may be
| paid as may be found necessary forsuch
general county road purposes, in which
the inhabitants of all districts within
the county are more or less interested,
or to assist weak or impoverished dis
| tricts in keeping their roads in repair,
or to be applied as the Board Of Super
visors may order or direct; also, for
the levy and collection of an annual
road pOlltaX; also, that all property,
road and polltaxes shall be expended for
road purposes within the district in
which it is collected, subject to the pro-
visions relating to the establishment Of
a general road fund.
Subdivision SO of Section % Of the
County Government Act, as amended in
1897, and which was in force at the
| time of and prior to the issuance of
bonds in this case provides that the
Board of Supervisors has power "to
| levy a special road fund tax not to
exceed two mills on the one dollar of
assessed valuation of all the property
in such counties, outside Of any incor-
porated city or town. Such tax shall
be in addition to all taxes otherwise
provided for, and the fund so created
shall be expended for the construction
and maintenance of the main public
roads or county highways in the sew
eral road districts, in proportion to the
amount collected from such districts"
| If this section were the only law per-
| tinent to the inquiry here the case
would indeed be a close one, for, as
will be seen, the Board Of Supervisors
have been given power on the one hand
to issue bonds for any purpose for
which they may expend the public
funds. and yet on the other, they are
forbidden to levy special road fund tax
within any incorporated city or town.
But it appears that at the time of the
enactment of the sections of the Politi-
cal Code relating to highway taxation
the Legislature appended a clause,
which reads as follows: "All laws con-
icerning roads and highways in conflict
with this Act, and all laws applicable
to particular counties Of this State
concerning roads and highways, are
hereby repealed; provided, that any
proceedings commenced before this
Act takes effect for the alteration, es-
tablishment or abandonment Of any
road or highway may be conducted I'M
der the provisions of the law under
which said proceedings were COM
Imenced; provided further, that nothing
herein contained shall be deemed to
authorize the levy or collection Of a
road poll tax or property road tax with
in municipalities existing under the
laws Of this State wherein work and
Improvements upon the streets is done
by virtue of any law relating to street
work and improvements within such
municipality Nor shall any such in
corporated city or towns be by the Su-
pervisors of the county included or
| embraced in any road district by them
established under this Act" Statutes
|