Liebman v. City & County of San Francisco

24 F. 705, 11 Sawy. 147, 1885 U.S. App. LEXIS 2156

• Court: United States Circuit Court
• Decided: August 24, 1885
• Status: Published

Opinions

Field, Justice.

This is an action against the city and county of San Francisco to compel the payment of 20 coupons for interest, each amounting to $30, attached to certain instruments designated in tho pleadings as “Montgomery Avenue Bonds.” The plaintiff prays for judgment; that the coupons are valid obligations of the city and county; that there is due by it, upon each of them, the sum of $30, with interest from the date of its maturity at the rate of 7 per cent, per annum; that the city and county pay the amount thus adjudged due from the special tax to be annually levied, assessed, and collected for that purpose, pursuant to the act of the legislature of April 1, 1872; and that the plaintiff recover against it for the costs of this action.

The validity of tho bonds to which the coupons are attached, and, of course, the validity of the coupons also, depends upon that act, and the compliance in their issue with its requirements. The object of the act was to open and establish a public street in the city and county of San Francisco, to be called Montgomery avenue, and to take private lands therefor. It described a strip of land by metes and bounds, and declared that it was taken and dedicated for such street; and that, when paid for, the title thereto should vest in the city and county for that purpose, as 'the title of other public streets was vested. It provided that the value of the property taken, the damages to improvements thereon, or adjacent thereto, and all other expenses incidental to the proceeding, should be considered the cost of the opening of the avenue, and should be assessed upon lands within a described district in proportion to the benefits accruing therefrom, to be ascertained by a board of public works created for that purpose. That board was to consist of the mayor, the tax collector, and the surveyor of the city and county of San Francisco; and whenever the owners of a majority in frontage of the property which was to bear the burden of the improvement, as they were named in the last preceding annual assessment roll for the state, city, and county taxes, should petition the mayor of the city and county, in writing, for the opening of the avenue according to the provisions of the act, the board was to proceed to organize by the election of a president, and then to the performance of its prescribed duties. It was, among other things, to ascertain and report the cash value of the land taken and the damages caused to the property along the line and within the course of the avenue; also, the benefits accruing from its opening to the lots within the prescribed district.

The report was to remain at the office of the board for 30 days for the inspection of parties interested, and notice that it was thus open for inspection was to be published for 20 days in two daily papers in the city and county. Any person interested who was aggrieved by the action of the board, as shown in its report, might, within the 30 days, apply, by petition to the county court setting forth his interest .in the proceedings, and his objections thereto, for an order on the board to file with the court its report, with such other documents or data as might be pertinent thereto, which were used by it in preparing the report. And the court was authorized to hear the petition, and the board could appear in response to it, and testimony could be taken in the matter. After hearing and consideration, it was in the discretion of the court to approve and confirm the report, or to refer it back to the board, with directions to alter or modify it in specified particulars. From the order of the county court an appeal could be taken to the supreme court of the state, to review the matters complained of. Upon the final confirmation of the report the board was required to prepare and issue bonds in sums of not less than $1,000 each, for the amount necessary to pay and discharge all the damages, costs, and expenses incurred. The bonds were to be known and designated as the “Montgomery Avenue Bonds,” and made payable in 30 years from their date, and to bear interest at the rate of 6 per cent, per annum, payable semi-annually at' the office of the treasurer of the city and county. Coupons for the interest were to be attached to each bond. The bonds were to be signed by all the members of the board, and its seal was to be affixed to each. The coupons were to be signed by the president.

Any person to whom damages for lands were awarded, upon tendering to the board a satisfactory deed -of conveyance of the property to the city and county, was entitled to have bonds issued to him equal to the amount awarded. The act also provided for the assessment and levy of an annual tax upon the property benefited for the payment of interest upon the bonds, and to create a sinking' fund for the redemption of the principal, the assessment to be “adjusted and distributed according to the enhanced values” of the respective parcels of land as fixed in the final report of the board. But the act declared that the city and county of San Francisco should not, in any event whatever, he liable for the payment of the bonds, nor any part thereof, and that any person purchasing them, or otherwise becoming the owner of any bond or bonds, accepted the same upon that express stipulation and understanding. The following is a copy of one of the bonds and coupons issued under the act. The others are similar in form, differing from each other only in their number.

State op California.

Board of Public Works.

City and County (Number 205) San Francisco.

(Yignette.)

$1,000. Montgomery Avenue Bond. $1,000.

In Conformity

with an act passed by the people of the state of California, represented in senate and assembly, entitled “ An act to open and establish a public street in the city and county of San Francisco, to be called Montgomery avenue, and to take private lands therefor,” approved April 1, 1879, the treasurer of the city and county of San Francisco, state of California, will pay, at his oilico in said city and county, to the holder hereof, one thousand dollars in United States gold coin, with interest at the rate of six per cent, per annum, payable semiannually in like gold coin, upon surrender of the corresponding coupons, and that the principal sum is redeemable within thirty years from the date of these presents.

It being understood and agreed that this bond may be redeemed by said treasurer as provided in said above-mentioned act of the legislature of the stale of California.

JSeal of the Board of Public Works. )

In witness whereof, the mayor, the tax collector, and city and county surveyor of said city and county of San Francisco, composing a board of public works, have respectively signed those presents, and the president of the board of public works has signed the annexed coupons as of the first day of January, 1873.

William Alvord,

President of the Board of Public Works and Mayor of the City and County of San Francisco.

Alexander Austin,

Tax Collector and Member of said Board of Public Works.

Richard II. Stretch,

City and County Surveyor and Member of said Board of Public Works.

$30. Board of Public Works. Coupon No. 15.

Montgomery M. A. B. Av. Bond.

The treasurer of the city and county of San Francisco will pay bearer, at his office, thirty dollars, six months’ interest.

On .bond 1 No. 205. j

( Due 1st January, } 1881.

Wit. Alyord,

President of Board of Public Works.

From this brief statement of the act of April 1, 1872, three things distinctly appear: (1) That the petition of the owners of a majority in frontage of the property to be charged with the cost of the improvement was essential to the validity of all subsequent proceedings taken for the opening of the avenue, including, of course, the issue of the bonds; (2) that in no event could the city and county be held liable on the bonds, and necessarily, therefore, not on the coupons attached; and (3) that every person purchasing or becoming the owner of any bond took the same on that express stipulation and understanding.

The act in question was before the supreme court of the state, and the subject of exhaustive consideration, in Mulligan v. Smith, 59 Cal. 206. That was an action of ejectment to recover land claimed by the plaintiff under a deed executed to him upon a sale of the premises for the non-payment of a taxed levied thereon to raise a fund to pay the interest on the bonds. In the lower court, evidence was in-trodpced which tended to show that the petition to the mayor, which was the essential initiatory step to the proceedings for opening the avenue, had not been signed by the owners of a majority in frontage of the property to be-charged, as shown by the names on the assessment roll of the previous year; and the court found that such was the fact. In the supreme court it was contended, as it had been in the court below, that evidence to impeach the correctness of the petition in this respect was inadmissible; and also that as the petition was sufficient on its face, and had been accepted by the mayor as sufficient, the defendant was estopped from questioning its validity, or the validity of the proceedings under it; and also that such estoppel followed from the judgment of the county court confirming the rqport of the board. But the supreme court held the evidence admissible, and that the defendant was not estopped from showing the insufficiency of the petition, either by the action of the mayor in accepting it, or the judgment of the county court; that while it might be true that the mayor was called upon in the first instance to decide upon the sufficiency of the petition, there was nothing in the statute which made his determination conclusive, and precluded an inquiry into its validity whenever the proceedings under it came up for judicial consideration. In no part of the statute, said the court, did it appear that provision was made for notice to the property owners of the proceedings authorized to be taken before the mayor, or'by the board, or in the county court. Neither the mayor nor the board was required to give notice of any kind until tbe board had completed the report of its work. And the notice then required was one of a general nature, by publication, and was only that the report was open for inspection. Though any property owner aggrieved by the action or determination of the board, as shown in its report, could have made Ms objections to the county court, they could not extend to the character or sufficiency of the petition. “Nowhere in the statute,” said the court, “is the petition made part of the report, or of the data or documents used in making it. Nor is it anywhere required that the board or the mayor shall return it to the court, or file it there or elsewhere. The court had, therefore, no jurisdiction of the petition; uo power to adjudge upon its execution; and it could not assume jurisdiction of it, or by its judgment decide upon its sufficiency and validity so as to conclude the defendant.” These conclusions of the court were concurred in by all its members, and sustained in separate opinions of marked ability and learning by three of them. All agreed that evidence to show'the defect in the petition, in not being signed by owners of a majority in frontage of the property to be charged, was admissible, and that the defect existing invalidated all the subsequent proceedings. “When, therefore,” said the court, “the legislature prescribed that a petition from the owners of a majority in frontage of the property to be charged with the cost of the improvement was necessary to set the machinery of the statute in motion, no step could be taken under the provisions of the statute until the requisite petition was presented. It was the first authorized movement to be made in the opening of the avenue. ' When taken, officers who were to constitute and organize a board of public works were authorized to organize. Until it was taken, they had no such authority. They could not legally act at all; or, if they acted, their proceedings would be unauthorized and void. The presentation of the petition required by the statute was therefore essential.”

The authorities cited in the several opinions show that similar conclusions have been reached by the highest courts of other states, in analogous cases. Indeed, the rule is fundamental that where private property is to be taken for a public improvement, upon the petition of a majority of those who are to bear its burden, the petition of such a majority must be made before proceedings for the appropriation of the property can be had. This is a condition which must be strictly followod. A failure to comply with it will vitiate all subsequent proceedings. No one, indeed, would contend that proceedings had in such cases, without the petition of any of the owners, would be valid; and a petition of a less number of the owners than that designated by the statute would be equally ineffectual. If one less than the required number may be omitted, so may all. Nor is the rule at all affected by the doctrine that in a certain class of eases evidence of such compliance is conclusively found in the action of officers required to consider and determine that fact. That doctrine, as we shall presently see, only applies to estop the obligors of a bond, and can have no bearing or consideration in the present case, where the bonds to which the coupons in controversy are attached are neither in form nor in law the obligations of the city and county.

The construction given by the supreme court of the state to the act of April 1, 1872, if not absolutely binding upon the judges of the federal courts, in cases arising under it, is certainly not to be disregarded and rejected, except for the most cogent and persuasive'reasons, such as would leave little doubt of the error of the state court. Conflicts between state and federal tribunals, in the interpretation of state statutes, are always to be avoided if possible. The federal courts will therefore follow the exijosition of the state courts, unless it conflicts with or impairs the efficiency of some principle of the federal constitution, or of a federal statute, or a rule of commercial or general law. In this case there is no such conflict or impairment. No principle of federal law is invaded, or rule of commercial or general law disregarded. The construction given is one we should unhesitatingly adopt, had the supreme court, the legitimate expounder of state statutes, never spoken on the subject.

There was, it is true, an intimation by one of the judges, in his opinion in Mulligan v. Smith, that in ah action upon the bonds, that being an action upon contract, a different rule might exist, and that an estoppel might arise against the defendant» It was, however, only an intimation to mark a possible distinction in the proofs required in the two forms of action. No question as to the effect of the bonds as evidence was before the court. And it is plain that if, to recover in the ejectment, it was essential to establish the validity of the proceedings leading to the levy of the tax to pay the interest on the bonds, it must be essential to establish the validity of the proceedings leading to the issue of the bonds themselves, and, of course, the sufficiency of the petition upon which the proceedings were founded, unless such sufficiency is, from the character of the instruments, and the recitals in them, to be conclusively presumed. In the ejectment case, a comparison of the petition with the assessment roll of the previous year disclosed the f'act that a number less than the majority of the owners in frontage, as shown by the names on the assessment roll, appeared on the petition. The subsequent proceedings were therefore from this defect, wholly unauthorized. The essential initiative to them had never been taken.

The question here is whether, assuming that an action will lie against the city and county on the coupons, will the sufficiency of the petition be presumed; or, what will amount to the same thing, will the defendant be estopped from denying its sufficiency, so as to allow the admission in evidence of the coupons, without other proof than the production of the bonds to which they were attached ?

There are numerous cases where municipal bonds have been authorized by statute, upon a vote of a majority of the citizens of a city, county, town, or other locality, and officers designated to ascertain and report as to the vote taken, and issue the bonds. When, in such cases, the bonds refer to the statute, and recite a compliance with its X>rovisions, and have passed, for a valid consideration, into the hands of bona fule purchasers, without notice of any defect in the proceedings, the obligors have been hold to be estopped from denying the correctness of the recitals. The doctrine on this subject is well stated by the supreme court of the United States in the recent case of Pana v. Bowler, 107 U. S. 539; S. C. S Sup. Ct. Rep. 713. “This court,” is the language used, “has again and again decided that if a municipal body has lawful power to issue bonds, or other negotiable securities, dependent-only upon the adoption of certain preliminary proceedings, such as a popular election of the constituent body, the holder in good faith has the right to assume that such preliminary proceedings have taken place, if the fact be certified on the face of the bonds by the authorities whose primary duty it is to ascertain it.” This doctrine is not accepted in many of the state courts, and has, in some instances, met with earnest dissent from judges of the supreme court. It must, however, be conceded that it is the settled doctrine of that court; but to its application the recitals must clearly import a compliance with the statute under which the bonds were issued. If, fairly construed, they are consistent with any other interpretation, they will not estop the municipal corporation in whose name they are made from showing that they were issued without authority of law. School-district v. Stone, 106 U. S. 186; S. C. 1 Sup. Ct. Rep. 84; Supervisors Carroll Co. v. Smith, 111 U. S. 556; S. C. 4 Sup. Ct. Rep. 539. And the recitals, when full, will estop only the obligors of the bonds; they cannot estop others who are not parties to them; they cannot affect strangers to the transaction. In both particulars the alleged recitals in the avenue bonds are inoperative to create any estoppel against the city and county. There is no statement of any fact in the clause called a recital. The clause is a mere caption to an order or promise of the board of public works that the treasurer of the city and county of San Francisco will pay to the holder the sum of one thousand dollars. “In conformity with the act,” the title of which is given, says the instrument, “the treasurer will pay.” Eead in connection with what follows, it imports that the treasurer will pay the amount designated in accordance with the act, — that is, out of the fund to be provided by it, — and that the holder can look to no other source of payment. There is nothing in the clause which would reach the petition, and import that it had conformed to the requirements of the statute. But the fact which disposes of this question of recitals, and any alleged effect attributed to them in the present case, is that the so-called bonds to which the coupons in controversy wore attached are not obligations of the city and county. They are not executed by it, or under its seal, or by its agents or officers, but by certain parties constituting the board of public works. The fact that certain officers of the city and county are made members of the board to appraise the property taken, and the injuries and benefits caused by the opening of the avenue, and to issue the bonds, does not constitute them agents of the city and county, and render their work as such board, or the bonds issued' by them, the work or the bonds of the city and county; no more than if they were constituted a board to establish a university,. and prescribe the studies to be pursued in it, would make them the' agents of the municipality for that pitrpose. Agents can only exer-' cise the powers of their principals; they cannot lawfully exceed them. Here the city and county, as a municipality, is not authorized to open the avenue, to appraise the value of the property taken, or the amount of injuries received by or benefits conferred upon the owners of property along the line of the avenue, or to sign and issue its bonds to the parties injured. In all these matters the board acts independently of the municipality. It is made the agent of the state to carry out a public improvement directed by its statute, and not the agent of the city and county. This branch of the case is more fully considered by my associate, and I fully concur in his views.

The foundation upon which the doctrine of estoppel from -recitals in municipal bonds rests is that the officers signing the bonds and inserting the recitals are agents of the municipality, and authorized to bind it by their acts and representations. The principle which gives rise to the estoppel, as well stated by the defendant’s counsel, is that it would be inequitable to permit a municipal corporation to take advantage of the falsity of solemn declarations of such agents within.the scope of their authority. But if the officers making the recitals are not such agents, there is no room for the doctrine of es-toppel. Their recitals, on no conceivable principle, can in such eases bind the corporation. It follows that if any action can be maintained upon the coupons against any defendant, the validity of the proceedings upon which the bonds were issued must be established by affirmative proof of the sufficiency of the petition, which was the essential initiative to them. But the question is not before us, whether an action can be maintained against any other party; it is enough that we are of opinion that the present action cannot be maintained .against the city and county of San Francisco. The plaintiff asks for judgment that the coupons are valid obligations of the"city and county; that there is due, by the city and county, upon each of the coupons, $30, with interest; that the city and county pay the amount thus adjudged due, out of the special tax to be levied under the act, and that the plaintiff recover his costs of the action. Such judgment could not be rendered upon the facts stated in the complaint. The statute to which the complaint refers, and upon which alone the judgment is sought, declares, in express terms, “that the city and county shall not, in any event whatever, be liable for the payment of tlie bonds, nor any part thereof,” and “that any person purchasing said bonds, or otherwise becoming the owner of any bond or bonds, accepts the same on that express stipulation and understanding. ”

As already stated, the so-called bonds, which, in fact, are only orders or promises oj the board of public works that the treasurer will pay to the holder the amounts designated, cannot bo the foundation of any liability of the city and county; and that such liability is sought to be charged appears from the prayer for judgment, although the discharge of that liability is to be had out of funds to be raised by the special tax for which the act provided.

The assorted ground of the action is that it is essential to establish the validity of the bonds, as a preliminary to an application for a mandamus to levy the special tax. Counsel assume that the validity of the bonds issued by one party can be determined in an action against another in no way named in them, nor liable for their payment. We do not so understand the law. We have not met with any adjudged case to that purport. On the contrary, we have always supposed that the party actually liable on a bond must have his day in court, in person, or by his representative, before a judgment determining its validity as against him or his estate could be regarded as having any binding force. Such liability cannot be vicariously imputed to him, or charged upon his estate. If the action be to charge particular property, of which there is no representative, there is a defect in the law, which the legislature, and not the courts, must supply.

It is true that in the enforcement of bonds of municipal bodies, wdiicli are to bo paid from funds raised by taxation, general or special, the validity of the bonds must first be established by the judgment of the court, — that is, the demand against the municipality on the bonds must be first carried into judgment; then a mandamus will issue, which is in the nature of an execution. It is the executory process for the enforcement of the judgment recovered. It can only issue to command the corporation against which the judgment is rendered, or its representatives or officers, to levy the tax prayed, just as an execution on an ordinary money judgment can only be issued against the property of the judgment debtor. Whether, when the judgment against the municipality is rendered, the writ is to direct a general or special tax upon all or a portion of the property within its limits, or only upon a particular class of property, real or personal, will depend upon the directions of the statute providing for the payment of the indebtedness created. The judgment, however, must, in all cases, be against the corporation to which, or to whose representatives or officers, the writ is directed. It is the liability of the corporation established by the judgment which is to be discharged by the levy of the tax prayed, and not the liability of any other body.

The several cases cited by counsel in support of their contention in no respect militate against these views, but, on the contrary, illustrate and confirm them. In all of them the bonds were issued in the name, or were in law the obligations, of the municipality against which the judgment was prayed, though in some of them the funds for the payment of the judgment were to be collected by a special tax upon. the property of a particular district. It would serve.no useful purpose to comment at length upon the cases in verification of this statement. Every one who may take an interest in the subject will find, upon examination of them, its correctness sustained.

One of the counsel of the plaintiff indulges in his brief in some strictures upon the action of the city and county of San Francisco, with respect to these bonds, characterizing it as “dishonest and dishonorable repudiation.” The accusation falls harmless in the face of the statute under which the bonds were issued, declaring that the city and county “shall not, in any event whatever, he liable for the payment of the bonds, nor any part thereof, ” and “that any person purchasing said bonds, or otherwise becoming the owner of any bond or bonds, accepts the same upon this express stipulation and understanding.” Nor can the legislators of the city and county be subjected to any just imputation of a want of regard to the honor and credit of the municipality in refusing to order the levy of a tax to pay the interest on the bonds, so long as the judgment of the highest tribunal of the state, the constitutional expounder of its laws, remains unreversed, declaring that the proceedings on which the bonds were issued, were taken in disregard of the conditions imposed by the legislature, and therefore were absolutely null and void. If property of citizens has been taken and is retained for an avenue of the city without compensation, upon proceedings not warranted by law, some other remedy must be sought by the parties injured than such as consists in affirming the validity of those proceedings in face of the judgment of that tribunal.

It follows from the views expressed that no recovery can be had upon the facts disclosed in the complaint, and the motion of the defendant to exclude all evidence in support of its allegations must be granted; and it is so ordered.