L. A. No. 4062. In Bank. June 2, 1915.

FRANK E. HARTIGAN, Plaintiff and Appellant, v. THE CITY OF LOS ANGELES, et al, Defendants and Respondents.

[1] MUNICIPAL CORPORATIONS-BONDED INDEBTEDNESS-ELECTIONDIFFERENT OBJECTS OR PURPOSES SEPARATE STATEMENT ON BALLOT.— Where an election is held for the purpose of authorizing the incurrence of a bonded indebtedness by a municipality, there must be a separate statement on the ballot for each distinct, unrelated and independent object or purpose for which it is proposed to incur indebtedness, and showing expressly the amount desired for each one, in order that the voter may express his choice on each without thereby affecting the other.

[2]

ID.-ID.-ID.-DETERMINATION OF DUAL CHARACTER OF PROPOSITION FACTS NOT ALLEGED AND NOT WITHIN JUDICIAL COGNIZANCEEXCLUSION FROM CONSIDERATION.-In considering the question whether or not a proposed bonded debt is for two distinct purposes concerning which the voters should be given the opportunity to approve or reject either or both, the court cannot consider, as bearing upon the question, facts not alleged and not within judicial cognizance; local and temporary conditions of public sentiment and local public controversies are not of the latter class and they must be alleged in order to become the basis for an argument. [3] ID. INCURRING OF BONDED INDEBTEDNESS-REVENUE PRODUCING MUNICIPAL IMPROVEMENT ACQUISITION OR CONSTRUCTION OF ELECTRIC GENERATING WORKS-ACQUISITION OR CONSTRUCTION OF ELECTRIC DISTRIBUTING SYSTEM-SINGLE PROPOSITION-SEPARATE STATEMENT ON BALLOT UNNECESSARY.-A proposition to incur a bonded indebtedness in the sum of $1,250,000 for the acquisition or construction of generating works, receiving sub-stations, transmission lines, lands, machinery and other property necessary to supply the municipality and its inhabitants with electricity for purposes of light, heat and power, and a proposition to incur a bonded indebtedness in the sum of $5,250,000 for the construction or acquisition of distributing lines, conduits and sub-stations therefor, constitutes but a single municipal improvement, and a separate statement of each proposition on the ballot is not necessary.

[4] ID.-ID.-MONEY VOTED FOR ACQUISITION OR CONSTRUCTION OF GENERATING PLANT-USE FOR COMPLETION OF UNFINISHED PLANTDIVERSION NOT ILLEGAL.-The fact that the proposition on the ballot stated that the $1,250,000 was to be used for the "construction or acquisition of electric generating works", whereas in fact it was proposed to use the money for the completion of an already partially constructed generating plant, and not for the acquisition or construction of new works, does not constitute an illegal diversion of the funds.

Appeal from the Superior Court of Los Angeles CountyChas. Wellborn, Judge.

For Appellant-E. R. Young.

For Respondents-Albert Lee Stephens, City Attorney; Howard Robertson, W. B. Mathews, Wm. B. Himrod.

The plaintiff has appealed from a judgment in favor of the defendants.

The plaintiff as a resident, citizen and tax payer of the city of Los Angeles, began the action to enjoin the city and its officers from issuing, signing or selling certain bonds of the city amounting to $6,500,000. The plaintiff claims that no valid election has been held for the approval of said bond issue by the voters of the city.

The constitutional provision is that no city shall incur any indebtedness exceeding the revenue for the year in which it is incurred "without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose". (Art. XI, sec. 18). The act of 1901, as amended in 1913, providing for such elections, declares that propositions for incurring indebtedness for more than one object or purpose may be submitted at the same election, and that the ordinance calling the election must recite the objects and purposes for which the indebtedress is proposed to be incurred. (Stats. 1913, p. 13.) [1] The rule of the decisions regarding more than one object or purpose is "that there must be a separate proposition on the ballot for each distinct, unrelated and independent object or purpose for which it is proposed to incur indebtedness, and showing expressly the amount desired for each one, in order that the voter may express his choice on each without thereby affecting the other" (Clark v. Los Angeles, 160 Cal. 321).

The election, the validity of which is here attacked, was held on May 8, 1914, in pursuance of ordinances passed for that purpose under the aforesaid bond act. The ordinance calling the election provided that the proposition should be stated on the ballot in the following form:

"Shall the city of Los Angeles incur a bonded debt of $6,500,000 for the purpose of acquiring and constructing a certain revenue-producing municipal improvement, to-wit: Works for supplying said city and its inhabitants with electricity for purposes of light, heat and power, including the construction or acquisition of electric generating works, receiving sub-stations, transmission lines, and the acquisition of lands, water rights, rights of way, machinery, apparatus and other works and property necessary therefor, the estimated cost of which is $1,250,000; also including the construction or acquisition of distributing lines, conduits and sub-stations, and the acquisition of lands, rights of way, machinery, apparatus and other works and property necessary therefor, the estimated cost of which is $5,250,000."

This proposition was stated on the ballot in the language above given, as a single proposition. To the right were the words "yes" and "no" printed on separate lines with voting squares at the side wherein the voter might indicate his choice for or against the proposal as an entirety. There was no mode provided by which the voter could vote "no" on that part of the proposition relating to the acquisition or construction of generating works with the sub-stations, transmission lines, lands, machinery and other property necessary therefor, estimated to cost $1,250,000, and vote "yes" on that part of the proposition embracing the acquisition or construction of distributing lines, conduits, and other property necessary therefor, estimated to cost $5,250,000. The contention of the plaintiff is that these two branches or elements of the proposition constituted two distinct municipal improvements which should have been submitted separately in such a manner that the voter could vote

for or against either or both, at his option. The ordinance declaring the necessity for the issuance of the bonds in question described the municipal improvement in the same words as on the ballot.

In support of his claim that this presents two distinct improvements, the plaintiff alleges the following facts which do not appear in the ordinance or on the ballot used at the election: Prior to the adoption of the resolution, the city of Los Angeles had constructed a municipal improvement known as the Los Angeles Aqueduct. This aqueduct is not otherwise described, but we take it to be a conduit for the conveyance of water to Los Angeles for the use of the city and its inhabitants. Along and upon this aqueduct the city had begun the construction of a plant for the generation of electricity and had already expended thereon $3,500,000, leaving it unfinished. It would require the expenditure of $1,250,000 to complete it. At the time and prior to the proceedings for the election the city proposed and now proposes to expend $1,250,000 of the bond money in completing this generating plant and not for the construction or acquisition of new or other electric generating works. Neither the ordinance nor the ballot shows that this $1,250,000 is to be used for the completion of the existing unfinished generating works. No reference was made to any unfinished works in any of the proceedings. There was at that time, and there is now, as the complaint alleges, no necessity for the construction or acquisition of a distributing system, being that part of the proposition calling for an expenditure of $5,250,000. The reasons for this lack of necessity are stated to be that the city was then, and now is, adequately supplied with systems for distributing electric current, that there was and is no necessity for the city to engage in such distribution, and that if the city should generate electricity, after completing its plant, it could dispose of all such electric current without engaging in the municipal distribution thereof. The plaintiff was a voter of the city and entitled to vote at said election and desired to vote in favor of incurring the indebtedness of $1,250,000 for the completion of the unfinished generating plant and to vote against the incurring of any indebtedness for the construction or acquisition of a distributing system. On the proposition as submitted on the ballot, in order to express his choice in favor of the $1,250,000 indebtedness, he was obliged to vote in favor of bonds amounting to $6,500,000.

[2] In considering the question whether or not the proposed bonded debt was for two distinct purposes concerning which the voters should have been given the opportunity to approve or reject either or both, the court cannot consider, as bearing upon the question, facts not alleged and not within judicial cognizance. Local and temporary conditions of public sentiment and local public controversies are not of the latter class and they must be alleged in order to become the basis for an argument. In his brief the plaintiff states that it is a well known fact that the advisability of municipal ownership of an

electric distribution system by Los Angeles was, at and before the time of said election, a question which was much discussed and upon which public sentiment was divided; that there were thousands of voters in the city who favored the completion of the generating plant but greatly opposed the city engaging in municipal distribution; that several large companies were engaged in distributing electricity adequately and cheaply to the city and its inhabitants; that the wisdom of the city's taking over this branch of the work was open to serious question and that the voters of the city were greatly divided in their beliefs on the subject, but that the completion of the partially constructed plant was generally favored and the necessity of it was plainly apparent. The plaintiff alleges that he was a voter of the city and desired to vote in favor of one part of the proposition and against the other part and found himself unable to do so, but it is not averred that there were any other voters so minded. The arugment seems to be that those who favored a municipal distributing system procured the city council to combine that project with the proposition to complete the unfinished generating plant along the aqueduct, in order to make the popularity and necessity of the latter carry the proposition for $5,250,000 to buy or build a municipal distributing system. If these facts had been alleged, or were susceptible of judicial notice, there might be some force in this argument. But they are not alleged and we must determine the question solely upon the facts set forth in the complaint.

[3] We are to determine whether or not the facts alleged, namely, that the $1,250,000 was necessary to complete the generating plant and save the money already expended thereon; that that amount of the bond money was to be used for that purpose; that the city and its inhabitants were already amply supplied with electricity distributed by public service corporations, and that the electricity generated by the proposed plant could be readily disposed of by the city without the erection by it of any distributing plant, necessarily lead to the conclusion that the proposition is a dual one the parts of which must be submitted separately. We think the question is settled by the decision in Clark v. Los Angeles, supra. One proposition for bonds, considered in that case, was the expenditure of $3,000,000 for the construction of harbor improvements in San Pedro Bay, of which $2,000,000 was to be expended for improvements on the south side of a certain established line and $1,000,000 for similar improvements on the northerly side of said line. It was urged that this constituted a double object, that the different sums to be expended for the different improvements on the respective sides of the line constituted separate and distinct objects upon which the voters were entitled to express their choice separately. The court held that the purpose intended was a single purpose, namely, that of improving the harbor of San Pedro by the construction of docks, wharves and warehouses with the streets and waterways necessary or convenient for their use and for access to, and from the land on one side and the water on

the other. The court said: "All this constituted but one general plan or object. The fact that the estimated cost was stated in two sums, two million dollars for the improvements on one side of the line described and one million dollars for those on the other side, does not render the two parts so distinct that they cannot be embraced in one scheme for improving the harbor, nor does it make each an entirely separate and distinct enterprise."

The municipal improvement for which the $6,500,000 was to be expended in the present case is described in the ordinance and on the ballot as "works for supplying said city and its inhabitants with electricity for purposes of light, heat and power", and the description then proceeds to say that this includes both a generating plant and a distributing system, stating the particular elements of the generating plant and of the distributing system and the estimated cost of each of these two parts of the improvement.

We think it must be conceded that, under the rule as stated in the Clark case, this does not describe two distinct and separate objects or improvements, but merely provides for one system for supplying electricity to the city and its inhabitants, including both the production of the supply and the distribution thereof. Neither the fact that the $3,500,000 already expended upon the generating plant would be lost if it is not completed, nor the fact that the plant, when completed, could be leased at a profit, nor the fact that the city could operate the generating plant alone and sell the product readily to distributing companies already in operation and serving the city, nor all of these combined, are sufficient to divide the proposed system, as matter of law, into two improvements or to render it necessary for the council to submit the two parts separately on the ballot. While it might have submitted separate proposals it was not bound to do so. It was a matter within its discretion,

[4] The plaintiff makes the further objection that, although the proposition on the ballot stated that the $1,250,000 was to be used for the "construction or acquisition of electric generating works", the city, in fact, proposes to use said sum for the completion of the already partially constructed generating plant and not for the acquisition or construction of such works, and that this would be an illegal diversion of the funds raised from the proposed bonds. Upon this he insists he is entitled to the relief prayed for by way of injunction to prevent the unlawful use of the bond money. The objection is based upon the language of the bond act authorizing the city council when it shall "determine that the public interest or necessity demands the acqusition, construction or completion of any municipal improvement" exceeding the annual income, to call a special election and submit the matter to the voters. The argument is that this necessarily implies that the acquisition of the improvement, the construction of the improvement and the completion of the improvement, each constitutes a separate and distinct proposition which must be submitted separately, and that money voted to acquire or