The opinion
SHAW, J., dissenting.
I dissént. I have no fault to find with the reasoning of the prevailing opinion from the premises on which it is based. If no provisions Of the Sacramento charter were applicable other than subdivision 22 of section 25 referred to in that opinion, there could be no valid objec
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tion to the conclusion there reached, in view of the previous decisions of this court in
McBean
v.
City of Fresno,
112 Cal. 166 ,
1
and
Smilie
v.
Fresno County,
112 Cal. 312 . But section 106 of the charter, in my opinion, requires a different conclusion. That section, so far as applicable to the question here, is as follows: “Should the board of trustees at any time deem it necessary for the interest and protection of the city at large, or any portion thereof, or the property or health of the citizens thereof, or any other matter or thing, the object of which would be to advance the interest of the city, to contract and create any debts or obligations against the city for material furnished, and labor and services performed,
without having the funds in the treasury to pay the same,
the said board may enter into contracts, and create debts or obligations, without interest, and are hereby empowered and authorized to levy and collect a special tax annually or in one levy, to pay such debts and obligations so created, and provide the mode and manner for their payment; provided, that no such debts, obligations, or claims
shall he contracted
or created against the city without having first been voted upon by the qualified electors thereof, unless expressly (otherwise) provided by this charter. ’ ’
It is apparent that this section was not intended to apply to debts or obligations for materials furnished or services performed in carrying on the ordinary current affairs of the city government. The scope of the section and the power of the board are by its language limited to materials and services for some purpose necessary “for the interest and protection of the city at large, or any portion thereof, or the property or health of the citizens thereof,” or some matter which would advance the interests of the city. This implies that the matter to obtain which the materials were furnished or services performed is something out of the common—something not necessary in the ordinary and usual administration of the city government.
It is equally clear that the contracts for the materials in controversy were not made in the course of the ordinary business of the city. The leases therein provided for were unimportant to the main purpose of the contract. The total amount of rent to be paid for the fire-alarm system for the entire term,
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if the purchase was not made, would be twenty-three thousand four hundred dollars; whereas the purchase price was only nineteen thousand five hundred dollars; and for the police and telegraph system the total rental was eighteen thousand dollars, and the purchase price fifteen thousand dollars. It is at least not probable, and scarcely conceivable, that the board would agree to pay for the rental of such a system for the period of five years a larger sum than the price for which they agreed to purchase the systems, if it had been the purpose simply to procure a lease thereof. It is manifest that the principal purpose to be achieved by the contracts was not the rental of the systems from year to year, but the purchase of the two systems outright. The board deemed it necessary for the protection of the property of the citizens and for the interest of the city to procure these improvements. Although this was a proper thing to do, it was clearly not a part of the ordinary current business. It was an extraordinary and unusual provision for the future, a permanent improvement for the public good, and it comes precisely within the class of improvements contemplated by the section above quoted.
The language of this section contains no words, as do the provisions construed in the McBean case, indicating a purpose to allow the board to look forward to future conditions and to contract debts to become due at some future time, and to become valid if at that time there is money in the treasury wherewith to pay the same, although there is none at the time the debts are contracted. It declares as plainly as language-can declare that when the board wants to contract any debt or obligation for the purposes there described, and there is not money then in the treasury sufficient to pay the same, it cannot make the contract without first submitting the question to the electors for their approval. The purpose is clearly shown to prohibit the disposition of the future revenues of the city by anticipatory contracts of this character without the previous consent of the electors. The language of the constitution is, that no city shall
incur
any indebtedness or liability "■contrary to its provisions, and the section of the municipal corporation act construed in the McBean case declared that the board should not create, audit, allow, or permit to accrue any such debt or liability. Perhaps these words “incur,”
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“create,” “audit,” “allow,” and “accrue” may properly be used with respect to the time when a debt or liability matures or becomes payable, but no such meaning can be ascribed to the word “contract” as used in section 106 of the charter in question. A debt is “contracted” when the contract upon which it is based is made. By no stretch of construction can we hold that it is not contracted, in the sense intended by this section of the charter, until some time in the future, when the services or structures contracted for shall have been fully performed or completed. It is clear from the language of the section that the condition upon which alone the board could make the contract without a vote of the electors— namely, the presence of “funds in the treasury to pay the same”—is a present condition which must exist at the time the contract is made.
The section was clearly intended to have a direct effect upon the power to make contracts. In my opinion, the necessary meaning of the charter provision in question is, that the board has no power, where there is no money in the treasury at the time the contract is made to pay the debt contracted, to enter into contracts for the purposes here involved, without the approval of the electors expressed at an election held for that purpose.
Angellotti, J., concurred in the dissenting opinion.
Rehearing denied.
1
53 Am. St. Rep. 191 .