Murphy v. City of San Luis Obispo

I concur. This case certainly reverses one point decided in Skinner v. Santa Rosa, 107 Cal. 465 . But although the point was involved in that ease, it was not essential to the conclusion reached, which was fully sustained upon other grounds. And since the decision of that point cannot have given rise to any claim of vested right, it ought to be set aside if erroneous. ' A comparison of the act of March 1, 1893, amending the act of March 15, 1883 (Stats. 1893, p. 59), with the act here in question, which was passed on the same day, is conclusive as to the sense in which that legislature used the expression “payable in gold coin or lawful money of the United States.” The same phrase must mean the same thing in both acts, and the former act shows clearly that the bonds were to be made payable *635 ■specifically in gold coin or specifically in lawful money, and not in either at the option of the municipality.

This construction also accords with the object of the amendment, which, as shown by Justice Harrison, would have been defeated by any other construction.

The board of trustees of the city of San Luis Obispo, having advertised for the sale of certain bonds of the city for the purpose of paying the cost of certain municipal improvements authorised by the voters under the provisions of the act of March 19, 1889 (Stats. 1889, p. 399), the plaintiff, a taxpayer of the city, brought the present action to enjoin the sale of the bonds and the levy and collection of any taxes for their payment, upon the ground that their issuance was illegal. The superior court rendered judgment in favor of the defendants, and the plaintiff has appealed therefrom. The notice of appeal states that an appeal is also taken from an order denying a new trial, but the record does not contain such order, nor does it appear therefrom that a new trial was ever asked for or denied. *626 The appellant presents three grounds upon which he contends that the issuance of the bonds is illegal, viz: 1. That the bonds are made payable in gold coin of the United States, instead of being made “payable in gold coin or lawful money of the United States”; 2. That at the election upon the question of their issuance the votes were not cast in accordance with the terms of the…