Mills

The plaintiff petitioned the trial court for a writ of mandate to compel the city council of the city of Culver City to include in the tax levy for the fiscal year of 1930-1931, a rate or sum sufficient to pay plaintiff’s judgment against the city of Culver City, in the sum of $2,753.50, with interest thereon at the rate of seven per cent per annum from June 18, 1928, or in lieu thereof, a rate or sum sufficient to pay at least one-tenth of the whole amount of said judgment, interest and costs, and to so levy a tax in each succeeding year until the whole amount of judgment be paid. The writ was granted in accordance with said prayer.

As set forth in appellants’ opening brief, the city of Culver City took all the necessary steps to institute eminent domain proceedings against certain property in the said city to be used for street purposes. The action was duly filed wherein plaintiffs herein were defendants. Subsequently, the eminent domain proceeding was dismissed and the proceedings were abandoned. Thereafter, judgment was rendered in favor of H. C. Mills, the plaintiff and respondent here, for the sum of $2,753.50, under the provisions of section 1255a of the Code of Civil…

I concur in the judgment. The limitation of liability for which section 18, article XI, of the Constitution provides, has reference only to contract indebtedness or liability. “In McQuillin on Municipal Corporations it is stated to be the well-settled rule that such provisions in the constitutions and statutes of the various states apply only to indebtedness which arises ex contractu and have no application to involuntary liabilities arising ex delicto.” (City of Long Beach v. Lisenby, 180 Cal. 52, 57 [ 179 Pac. 198, 200 ].) “This constitutional provision has been held applicable only to contractual obligations.” (Birch v. Monroe, 70 Cal. App. 656, 661 [ 234 Pac. 125, 127 ], citing City of Long Beach v. Lisenby, supra.) “It is conceded that if the liability in question is contractual the judgment must be affirmed. (Arthur v. City of Petaluma, 175 Cal. 216 [ 165 Pac. 698 ].) On the other hand, it is conceded that if such liability is one created by statute the judgment must be reversed.” (Kennedy v. City of Gustine, 210 Cal. 18, 20 [ 290 Pac. 38 ].) In Oscar Heyman & Brother v. Bath, 58 Cal. App. 499 [ 208 Pac. 980 ], the petitioner for writ of mandate was seeking to compel the…

I dissent. (City of Pasadena v. McAllaster, 204 Cal. 267 [ 267 Pac. 873 ], and authorities there cited.)

A petition for a rehearing of this cause was denied by the District Court of Appeal on June 29, 1932, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 28, 1932.