Fritz

—This is an appeal from a judgment of the superior court in and for the city and county of San Francisco sustaining the demurrer to a complaint filed by a taxpayer in a proceeding to enjoin the board of supervisors and the mayor of said city and county from taking any further action in pursuance of certain proceedings previously inaugurated, and having for their object the issuance of bonds of said city and county, and the purchase of lands for park purposes from the proceeds thereof. The proceedings leading up to the proposed issuance of these bonds are assailed at many places, but the court finds it necessary to review only the more important propositions of law involved.

The Park and Boulevard Act (Stats. 1889, p. 361), under which the election was held submitting the question of the issuance of these bonds to the electors of the city and county of San Francisco, provides (sec. 6), “If at such an election two thirds of the qualified electors voting an assent to the issuance of the bonds, then the ‘city and county’ or ‘city or town’ having held such election, may, by ordinance, or in such manner as other-municipal legislative acts are enacted under its charter, provide,” etc.…

concurring.—I concur in the conclusion reached in the principal opinion, but upon slightly different grounds. As I understand the opinion, it is determined that the Park and Boulevard Act was abrogated by the adoption of the charter, because the charter itself contains a provision authorizing the supervisors to do the same thing authorized by that act. In other words, the purchase of lands for parks and boulevards, and the issuance of bonds, is a “municipal affair,” because it is authorized by the charter itself. To sustain this proposition, reliance is placed entirely upon section 29 of article XVI of the charter, which is an article entitled “Miscellaneous,” and is made up of explanatory and supplemental provisions. Section 29, as I understand it, merely provides for a possible contingency,— to wit, when, in pursuing its lawful authority, the board proposes to acquire permanent municipal improvements, it finds that the cost will exceed the annual revenue, it may issue bonds. Whether it may acquire the particular improvement or expend municipal funds for that purpose is not determined at all by that section. To answer this question, which was the main matter discussed by counsel,…