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1893 p. 361,] contained provisions similar to the foregoing, but the first sentence in each of the former acts differed from the first sentence in this, as follows: 1883.—"The board must not, for any purpose, contract debts or liabilities, except in pursuance of law, nor shall such indebtedness or liability in any manner or for any purpose except as permitted in section five of this act, exceed in any fiscal year the income and revenue provided for such year." 1891,—The same as 1883. 1893. The board must not, for any purpose, contract debts or liabilities, except in pursuance of law, nor shall such indebtedness or liability, in any manner or for any purpose, except as permitted in section five of this act, and except in cases of emergency when necessary for repairing any bridge or bridges, exceed in any fiscal year
the income and revenue provided for such year."
Section 37 of the former county government acts provided that "the supervisors can only contract a bonded indebtedness other than such as is authorized by section twenty-six of this act as follows." Then followed provisions requiring the designation of the purposes for which the indebtedness was to be created, the ordering of election, notice, character of ballot-, terms and conditions of the bonds, etc. As section 26 of each of the acts relate to the form and publication of ordinances, and not to bonds or indebtedness, it is not at all clear what was meant by those references in the former acts. Section 5 of those acts, however, did contain the substance of section 18, article XI of the constitution. The present act leaves the subject exactly as the constitution makes it.
The constitution provides no special machinery for the creation of debts in any year in excess of the revenue or income of that year, but prescribes only that it cannot be done except by endorsement of two-thirds of the electors voting therefor at an election; but it is believed that this situation is fully met in the case of Gibson v. Board of Supervisors, 80 Cal. 363. The court there says: “It is sufficient to say here that the constitution of the state (Sec. 18, Art. XI] has specifically provided for an election to determine the policy of creating a bonded indebtedness, and prohibited the issuance of bonds without the consent of two-thirds of the voters of the county; and that whenever there is such a constitutional provision, and no machinery provided by law for enforcing it, the constitution, by necessary implication confers upon the court of chancery jurisdiction to protect and enforce the will of the people by suitable and proper procedure." The foregoing expression was brought out by reason of a contention that an election on the question of creating a bonded indebtedness was not an election contemplated by sections 1265, 1266 of the Political Code, and that there was no authority for opening or counting the ballots, but that they should be retained by the clerk for one year unopened and then be destroyed:—that under sections 1111-1127, Code of Civil Procedure an "election contest” could only arise concerning an election to office. That contention was not sustained by the court. It may be safely said that the constitution contemplates an election under usual formalities and conditions and subject to usual restrictions.
Section 37 of the former acts relative to elections for creating indebtedness by issuance of bonds, require the ballots to contain the words “For the issue of bonds” and “Against the issue of bonds,” and it was held in the case just cited that the addition of the words “yes” and “no” was unnecessary.
See subdivision 13 of section 25 of the present act, which reads, “Bonds yes, and Bonds no; or words of similar import.”
It is also suggested that a proposition to incur indebtedness and issue bonds there'or may be submitted to vote ander the provisions of section 13 of the present act, and elections there provided for are to be "conducted, and the returns canvassed in all respects as provided by law," etc. “The board of supervisors may also, at any election, submit any question or proposition upon which they may desire the opinion of the voters of the county."
That the revenue of each year only can be applied to indebtedness created in the same year, compare Bilby v. McKenzie, 112 Cal. 143; In re Wetmore, 99 Cal. 146; Lewis Widber, 99 Cal. 412; Smith v. Broderick, 107 Cal. 644; Shaw v. Statler, 74 Cal.
258; Weaver v. City and County S. F., 111
Cal. 321; S. F. Gas Co. v. Brick wedel, 62 Cal. 641; City and County of S. F. v. Broderick, 111 Cal. 303.
A claim for burying the indigent dead for the fiscal year cannot be paid out of the income of the succeeding year. Pacific Undertakers v. Widber, 113 Cal. 201.
That one contracting with public officers must be held to know out of what funds his demand can be paid, and be held to have contracted with knowledge that debts contracted in any one year can only be paid out of the revenues of that year see Mayrhoffer Board of Education, 89 Cal. 110.
An order and election proclamation by the board of supervisors which state that the election will be held for the purpose of submitting the question of the issue of a specified amount of bonds for the construction of two wagon roads, defining the termini of each road, sufficiently specify the particular purpose "for which the indebtedness is to be created." People ex rel Mariposa County 0. Counts, 89 Cal. 15. Under Section 37 (former acts), the
supervisors are not required to act by “ordinance," and an ordinance is not necessary for the purposes of that section, though required by the act for some other purposes. And
“To the vote of the people of this county" is construed to mean "to the qualified electors of the county," and the order of the supervisors so worded is not invalid. People ex rel Mariposa County v. Counts, 89 Cai. 15.
Under section 37 (former acts of the county government act, a bonded indebtedness cannot be created unless the order of the supervisors submitting the question to vote specifies the amount of bonds required for each particular purpose. An order reciting "for the purpose of constructing, grading, repairing, and maintaining bridges and public highways within the county, and for the purpose of erecting and maintaining a county jail and poorhouse and hospital," without specifying the amount for each purpose, is invalid, and mandamus will not lie to compel the county treasurer to issue bonds voted for in pursuance of such order. The People ex rel Kern County v. Baker, 83 Cal. 150.
The special proposition of incurring county indebtedness may be submitted at a general election, and the two-thirds of votes upon that special question only, is required to determine it. It does not require two-thirds of all the electors voting at such general election to determine the question of incurring the indebtedness. [Const. Sec. 18, Art. XI.] Howland v. Board of Supervisors 109 Cal. 153.
Supervisors may be compelled to vote for an ordinance to provide for payment of county indebtedness. People v. Supervisors S. F., 21 Cal. 668. See subdivision 12, section 25 of this act, and notes, ante.
As to the city and county of San Francisco, it was held that the constitutional prohibition against incurring or paying indebtedness in