County Ct. v. Deposit Bank, 87 Ky. 382; Peo- I therefore "a question submitted to the voters" ple, Mitchell, v. Warfield, 20 III. 163; Louis is not in any way dependent on or connected ville & N. R. Co. v. Davidson County Ct. 1 with an election of officers, although submitted Sneed, 692, 62 Am. Dec. 424; Bridgeport v. op the same day and by means of the same balHousatonic R. Co. 15 Conn. 475; State, Bassett, lots; and, as the Constitution left it to the legis. v. Renick, 37 Mo. 270: St. Joseph Trop. v. lature to determine whether the question Rogers, 83 U. S. 16 Wall. 644, 21 L. ed. 328; should be submitted on the day of the general Everett v. Smith, 22 Minn. 53; State v. Binder, election or on some otber day, the action of the 38 Mo. 450; People, Gaines,v. Garner,47 III. 253. legislature in fixing the submission for the same

day as the general election did not commingle Du Relle, J., delivered the opinion of the or make them interdependent. In support of court:

this contention the case of Fidelity Trust & S. This suit was brought for an injunction to V. Co. v. Morganfield, 96 Ky. 564, is relied on. restrain the city of Louisville from issuing In that case it was held that the submission of $1,000,000 of bonds for park purposes. an issue of bonds for municipal purposes inight There were two grounds alleged for the in- be upon a different day from that of the genjunction, the first and main ground urged be eral election. After careful consideration by a ing that at the election of November 6, 1894, full bench, a majority of the court are unable the question of the issue of bonds was sub- to adhere to the doctrine laid down in that mitted to the voters of the city, and that the opinion. Section 147 of the Constitution, reproposition to issue did not receive the assent quiring elections by the people to be by secret of two thirds of the voters thereof, within the official ballot, provides that “the word 'elecmeaning of $ 157 of the Constitution, and tions' in this section includes the decision of $ 2854 of the Kentucky Statutes. It appears questions submitted to the voters, as well as that at the election there were cast in the city the choice of officers by them.” Section 148 of Louisville a total of 32,425 votes, and that provides that “not more than one election on the question of the issue of park bonds in each year shall be held in this state or in there were cast only 9,204 votes, of which any city, town, district, or county thereof, ex6,483 were cast in favor of the issue, and 2,721 cept as otherwise provided in this Constitution. against it. Section 157 of the Constitution | All elections of state, county, city, town, or provides that “ no coupty, city, town, taxing district officers shall be held on the 1st Tuesdistrict, or other municipality, shall be author- day after tbe 1st Monday in November.” It is ized or permitted to become indebted in any otherwise provided as to elections for school manner, or for any purpose, to an amount ex- trustees by $ 155, wbich excepts those elections ceeding in any year the income and revenue from the provisions of $$ 145 to 154 inclusive, provided for such year, without the assent of and as to elections for taking the sense of the two thirds of the voters thereof, voting at an people of a county, city, etc., as to whether election to be held for that purpose; and any liquors shall be sold therein, by $ 61, which indebtedness contracted in violation of this provides: "All elections on this question may section shall be void.” It is contended for ap- be held on a day other than the regular election pellants that, the total number of votes cast at days.” In this section the word "election” is ihe election in favor of the bood issue being used in the sense provided in $ 147, and this less than two thirds of the whole number cast provision indicates clearly that the word is at the election, the bond issue failed to carry, used in 148 to include questions submitted to upon the ground that the section referred to the people, for otherwise there would be no requires that two thirds of the total vote cast at need for the permission given by $ 61. By $ 152 the election shall be cast in favor of the issue. vacancies in the general assembly may be filled Appellees contend that the words,“ two thirds at a special election. It seems clear that the of the voters thereof voting at an election to provision of $ 148, that not more than one elecbe held for that purpose," restrict us to the tion each year shall be held in this state, or in consideration of the total number of votes any city, town, district, or county tbereof, excast for and against the question of issuing cept as otherwise provided in the Constitution, bonds, and that, therefore, more than two thirds applies to questions submitted to the voters; of the votes of those voting "for that purpose" and the only provision otherwise in the Conwere cast in favor of the bond issue. In other stitution, in reference to such questions, is the words, appellees' contention is that, in the one in regard to the submission of questions as "election held for that purpose,” only the votes to the sale of liquor. When it is considered cast for that purpose-for and against the bond that the manifest purpose of the framers of the issue-can be considered, and that no account Constitution, and of the people who ratified can be taken of votes cast for other purposes, and gave it effect, was to put limitations upon such as the election of officers, although cast on the power of the local authorities in the matter the same day.

of incurring debts which would result in opGreat stress was laid by appellees' counsel pressive taxation, and even to limit the power upon the argument that the legislature might of the people themselves improvidently to have provided for the submission of the ques- authorize the assumption of such obligations, tion of the bond issue at a special election, held the wisdom of the restriction of such elections on a different day from the regular annual to the day of the general election is evident. election, and at which no other question or Not only is a much larger vote ụsually brought election was determined; and as at such spe out on the occasion of the general election, but cial election only the votes cast upon the bond the people at large are usually better informed issue could be considered, though the vote of the matters upon which they are entitled to might, and probably would, be much less than vote, by reason of the greater interest taken, the vote cast at the regular annual election, I and the fuller discussion of such matters.

We come now to the main question presented | would involve an inquiry whether there were in this record. By & 157 of the Constitution it other voters of the county who had, from is provided: “No city

shall be au- any cause, abstained from voting; and this thorized or permitted to become indebted, in would lead to interminable inquiry, and invite any manner or for any purpose, to an amount contests in such elections which would be emexceeding, in any year, the income and revenue barrassing and baneful, if it did not destroy all provided for such year, without the assent of of the practical benefits of laws passed under two thirds of the voters thereof, voting at an these provisions of the Constitution." election to be held for that purpose.

The But we are met with a very different ques. object of this provision was to limit the power tion when the question is required to be subof the local authorities and the people to burmitted at a general election, is one of the purden themselves and their posterity with taxa- poses for which that election is held, and is tion, except upon full consideration, and by the required to receive the assent of two thirds of assent of the people, given understandingly, the voters of the city voting at that election. In order to effect that object it was provided In such case the result depends on a majority that no city should be authorized to become of all the votes cast at the election being cast indebted in excess of the current year's reve. for the proposition, and not merely a majority nue, without the assent of two thirds of the of the votes cast on the particular question. voters thereof, voting at an election to be held in the case of People, Wheaton, v. Wiant, 48 for that purpose. It was sought to protect the II. 263, the Constitution required that a mapeople from their own improvidence and that jority of the voters should vote in favor of the of their local officials, and sucb a construction removal of a county seat, and the court held, must be given to the Constitution as will give referring to the case in 20 ml. 160: “In Wareffect to its manifest purpose. There could be fields Case there was no vote taken at that elecbut one election in the year except in the cases tion, except upon the question of the removal specially provided for. This question was to of the county seat, and that vote was adopted be submitted to the people at that election. It as the means of ascertaining the number of was one election, though held for several pur- legal voters of the county, and whether the poses, and was in no sense a collection of elec- majority was in favor of or against removal. tions held on the same day. One of the pur. In ihis case, however, there was, at the same poses of the election was to determine this time, an election held for circuit judge, which question, which, under authority of the Con was a regular election. We therefore have, in stitution, the statute, and the ordinance passed this case, additional means of ascertaining the in accordance therewith, was to be submitted whole number of voters of the county. If the to the voters of the city. It was required that return of the various poll books of the county two thirds of the voters of the city voting at showed a larger pumber of votes cast for cirsuch election should give their assent to the cuit judge or other officer than were cast for bond issue. Assent implies action, and is not and against removal of the county seat, then mere failure to dissent. At the election held that should be taken as the number of voters for the purpose of electing various officers, and of the county; and it should appear that a for the additional purpose of determining the majority of the voters at that election had cast question of the bond issue, there were cast their votes in favor of removal before the 32,425 votes, and of all those voters, voting at county seat could be changed. It is not the the election held for those purposes, but 6,483, vote cast upon that single question that is to less than one fifth of the total number, gave govern, where it occurs at any other election their assent to the proposition to impose on the held at the same time; but it must appear that city of Louisville the burden of an additional a majority of all the votes cast at that election debt of a million of dollars. The authorities i were in favor of removal. When there is no which to a greater or less degree bear upon other election held at that time, the returns of this question are numerous and conflicting. It the officers of votes on that question will govmay be conceded that, under a provision like ern." So, in People, Davenport, v. Brown, 11 the one under consideration, it is not necessary I1). 478, a case of mandamus to compel townthat two thirds of those entitled to vote should ship organization, under a constitutional proactually vote in favor of the proposition, and vision that “the general assembly sball provide that, as was said by the supreme court of the by a general law for a township organization Coited States in Carroll County Supers. v.

whenever a majority of the voters of Smith, 111 U. S. 565, 28 L. ed. 520, "the words such county, at any general election, shall so ‘qualified voters' as used in the Constitution, determine," the court said: “The language is must be taken to mean, not those qualified and clear and esplicit, and admits of but one mean. entitled to vote, but those qualified and ac- ing. It does not mean a majority of those vottually voting. In that connection a voter is ing on the question to be submitted, but a one who votes, not one who, although qualified majority of all the legal voters in the county." to vote, does not vote.” To the same effect are In Everett v. Smith, 22 Minn. 53, the Constitumany authorities cited by appellees, and the rea- tion provided that the question should be “subson of the rule is well stated in People, Wheaton, mitted to the electors of the county or counties v. Wiant, 48 111. 263, as follows: "It was held, to be affected thereby at the next general elecin People, Mitchell, v. Warfield, 20 I11. 160, that tion after the passage thereof, and be adopted to give this provision of the Constitution a prac-by a majority of such electors;" and it was held tical operation we must presume that it was that the provision required a majority of the the intention of the framers of that instrument electors voting at the election, and not a mathat the voters would all vote, and that the jority of those voting on the question. So, in majority of those voting should determine the Ohio(Enyart v. Hanover Trop. Trustees, 25 Ohio question. To give it a different construction St. 618), the legislature bad authorized the levy

of a tax with this proviso, that the levy should | many votes. The statute of elections provides pot be made until a majority of the electors the person receiving the highest number of of said township at some regular election sball votes for any office shall be declared elected to vote in favor of said levy;". and it was held that office, and the election is decided by a that a majority of all the votes cast at the regu- plurality of votes. Moreover, it may well be lar election was required, and not a majority considered that there is an essential difference of those voting on the question. And in State, between the action of electors in voting for a Cope, v. Foraker, 46 Ohio St. 677, 6 L. R. A. candidate for office, and in assenting to the 422, a provision of the Constitution, that “if creation of a municipal debt. The former is a majority of the electors voting at such elec. the exercise of a political privilege, the mere tion sbali adopt such amendments, the same selection of a person to perform officially shall become a part of the Constitution,” was duties which have been annexed to a particubeld not to be complied with by a majority of lar office; and it is fair to presume that those the votes cast on the amendment. The Ohio who do not participate in the election consent Constitution bad another provision requiring to be governed by those who do. But the lat. the adoption of amendments wbich had been ter is the authorization of a contract by which agreed upon by conventions "by a majority the people of the locality incur obligations, of those voting thereon," and the court called and bind their property to the payment of a attention to the difference in language, saying debt; and it is natural to expect that the that, "if the framers bad bad the same inten- language used in relation to it will be differtion in framing $ 1 as in framing & 3, as to ent, that definite action will be required of a how the majority for the adoption of an majority of the voters, and that it will be reamendment should be ascertained, they would quired that their assent thereto sball be exhave provided in tbat section, as in $ 3, that pressed. And so we find it in the Constituit should be a majority of those voting thereon, iion and the statute. If the submission were. instead of a majority of the electors voting at permitted to be, and were, in fact, submitted such election.' This is directly in point in at an election at which no votes were cast exthe consideration of the case at bar, for in cept upon the proposition, it might very well $ 256 of the Kentucky Constitution we find it be concluded that the words “two thirds of provided that the passage of an amendment the voters of the city" meant two thirds of to the Constitution shall be determined by “a those who see fit to exercise their privilege, and majority of the votes cast for and against an that the ballot box is the only test to be apamendment,” and in 64 it is provided that plied. Louisville & N. R. Co. v. Davidson do county shall be divided, etc., “unless the County Ct. 1 Sneed, 637, 62 Am. Dec. 424. In majority of all the legal voters of the county this case the test of the ballot box shows that voting on the question shall vote for the same.” only one fifth of the voters who voted at the So that, in two other sections of the instru- election gave their assent to the proposition. ment, the convention was at no loss for apt There were many authorities cited on both words with which to limit the decision to the sides of this question, but it would be undetermination of those only who should vote profitable to review them in detail. A very upon the question. In State, Jones, v. Lan- interesting analysis of a large number of them caster County Comrs. 6 Neb. 474, the Constitu- is given in South Bend v. Lewis, 38 Ind. 512. tion provided for a township organization It will be found that they bave turned, in some “whenever a majority of the legal voters of cases, upon the settled policy of the Constitusuch county, voting at any general election, tion which was under consideration, as in the shall so determine”; and it was beld that, as case of Metcalfe v. Seattle, 1 Wash. 302, wbich the affirmative vote on the question submitted at first blush appears to be directly in point was less than a majority of those voting at the against the conclusion reached by this court. election, the proposition was defeated. In In most of the cases, the court's conclusions State v. Winkelmeier, 35 Mo. 103, authority were reached by considering, not only the was claimed under a legislative grant of power, language of the provision in question, but all “ whenever a majority of the legal voters ” other relevant sections of the instrument, as authorized the same, and the majority of those well as its general intent. These differ in the voting on the question were in favor of the different cases, and it is not surprising that the grant; but the court said: “It is evident that courts have apparently differed in the weight the vote of 5,000 out of 13,000 voters is not the which they have attached to the arguments vote of a majority." The case of Hogg v. drawn from them. Several of the cases cited Baker (Ky.)31's. W. 726, was under § 64 of bave been doubted or qualified in subsequent the Constitution as to the removal of a county cases. One of them (Gillespie v. Palmer, 20 seat, wbich requires “two thirds of those vot. Wis. 544), much relied op by counsel for aping” to decide. That case, however, was de pellees, has since been referred to by the chief cided largely on the ground that the voters justice of the Wisconsin court as one of a numwere misled, and nothing appears in the record ber of cases “which bave long been a reproach of the case at bar to show that the voters of to the court," as "judgments proceeding upon Louisville were misled, except as it may be policy rather than upon principle.” Bound v. argued inferentially from the language of the Wisconsin C. R. Co. 45 Wis. 543. In all of statute and the ordinance and the smallness of the cases the object sought was the intent of the vote cast upon the question.

tbe instrument. Little weight can be given the argument In the case at bar not much consideration drawn from the fact that at a general election bas given to the debates of the convencandidates for various offices may be elected, tion, though the members who spoke appear to notwithstanding other candidates for other have given S 157 tbe same construction with offices may have received more than twice as this court; " for, as the Constitution does not derive its force from the convention which, improvement of lands for park property, the framed it, but from the people wbo ratified it, general council of a city may, by ordinances, tbe intent to be arrived at is that of the people, submit to the qualified voters of the city the and it is not to be supposed that they have question as to whether the city shall issue looked for any dark or abstruse meaning in bonds, with interest coupons attached, to the the words employed, but rather that they have amount and of the character set forth in such accepted them in the sense most obvious to ordinances; and when such ordinance is the common understanding, and ratified the passed, it all, the next November election, instrument in the belief that that was the sense be submitted to the qualified voters of the city: designed to be conveyed.” Cooley, Const. and if it receives assent of two thirds of those Lim. 6th ed. pp. 80, 81. “Its terms must be voting, the bonds so yoted shall be issued by taken in the ordinary and common accepta- the city, and delivered the board of park tion, because they are supposed to have been commissioners." This requires the proposiso understood by the framers and by the tion to be submitted at the November election people who adopted it." State, Jones, v. Lan- to the qualified voters of the city. “and if it caster County Comrs. 6 Neb. 474. These con receives assent of two thirds of those voting, siderations have led us to reject the construc- the bond so voted shall be issued,” etc. What tion contended for by appellees, of which it is meant by those voting? Clearly, those votmay be said, in the language of the Obio court ing at the November election. The ordinance in Slate, Cope, v. Foraker, 46 Obio St. 677, 6 is still more explicit. It provides: “Sec. 5. L. R. A. 422: “But one of the most obvious At the November election of 1894, there shall objections to this construction is, that it re- be submitted to the qualified voters of the city quires to be demonstrated by such a labored of Louisville, the question as to whether the process of occult reasoning upon the meaning city shall issue said bonds, and the said bonds of words and phrases, so different from the shall not be issued unless, at said election, two apparent meaning, as to warrant the belief thirds of those voting shall vote in favor of the that it never occurred, either to the framers of issuing of said bonds as herein provided. In the Constitution, or to the people who adopted the event that two thirds of those voting at it.” And in this case we cannot believe that said election shall vote in favor of issuing any considerable number of the voters who said bonds, then the fact that they have done read $ 157 of the Constitution before voting so sball be certified to by the mayor, upon for its adoption thought for a moment that said bonds, and the said bonds shall then, but that provision, upon its face restrictive of the only in that event, be issued by the city, and power to create additional indebtedness, could delivered by the mayor to the board of park be so construed as to authorize the creation of commissioners of the city of Louisville, to be a $1,000,000 debt, upon the vote of some by the said board of park commissioners used 6,000 out of thirty-odd thousand voters ac- and disposed of for the improvement of lands tually at the polls. We are not unmindful of for park property as provided by law.” This the need for parks in a great city, and the requires the submission at the November benefits of a park system such as the one pro election of 1894, and provides that the bonds posed and in part instituted in the city of shall not be issued "unless at said election Louisville, but the people who are to bear the [i. e. the November, 1894, election) two thirds burden must give their assent to the creation of those voting shall vote in favor of issuing of the debt to be incurred for the purpose. said bonds.

In the event that two There is another ground upon which this thirds of those voting at said election [the Noconclusion might be rested. The constitu- vember election) shall vote in favor of issuing,” tional provision is restrictive. It forbids the etc. It is obvious that both the statute and creation of the debt unless upon the assent of the ordinance require the favorable vote of two thirds of the voters, etc. Had $ 157 two thirds of those voting at the general election. provided, as in $ 64, that it should not be Landes, J., dissents from that part of this authorized unless two thirds of the voters of opinion which holds that questions submitted the city “voting on the question shall vote for to the people must be submitted at the regular the same,” that would not bave required the election, being of opinion that the provision in legislature to authorize the submission of the $ 157, requiring the assent of two thirds of the question, vor the city authorities to submit it. voters“ voting at an election to be held for So, as the right to submit might have been that purpose,” requires that there shall be a denied altogether, it might be given with ad- special election beld " for that purpose," and ditional restrictions, as the requirement of a that such special election cannot be held on three-fourths vote; and when the city council, the regular election day, the words quoted by ordinance, provided for the submission to being a mandatory provision otherwise within the vote of the people, it might have imposed the meaning of $ 148. Landes, J., concurs, an increased restriction. So that, if we were however, in the other principles stated in the of opinion that the Constitution required only opinion. two thirds of those voting on the question, we The other questions raised in the record must still look to the act and the ordinance to need not be considered. For the reasons find if they, or either of them, require any ad. given, the judgment is reversed, with directions ditional prerequisite to the bond issue. The to sustain the demurrer to the first paragraph statute is as follows: “Sec. 2854. For the of the answer, and for further proceedings purpose of raising money for the purchase or I consistent with this opinion. 34 L. R. A.



John MULLAN, Appt.,

Messrs. W. F. Fitzgerald, Attorney Gen

eral, and W. H. Anderson, for respondent: STATE of California, Respt.

The alleged contract of employment was in

each instance made without express authority (........ Cal.........)

of law, and was and is void.

The governor had no authority to make this 1. The courts are charged with knowl. employment. edge, under Code Civ. Proc. $ 1875, of whatever People v. Talmage, 6 Cal. 256; San Francisco is established by law, and of all public as well as & F. Land Co. v. Banbury, 106 Cal. 130. private acts of the legislative, executive, and ju- A joint resolution does not meet the constidicial departments of the state.

tutional requirements of express law. 2. A mere concurrent resolution of the People v. Toal, 85 Cal. 333; Collier & C. legislature to which the executive approval Lithographing Co. v. Henderson, 18 Colo. 259. is not affixed, as in case of a statute, although it The questions involved in this case can be is passed upon the governor's recommendation to raised by demurrer. ratify his appointment of an agent for the state, San Francisco & F. Land Co. v. Banbury, and expressly directs him to allow a certain com- 106 Cal. 129: Branham v. San José, 24 Cal. 604; pensation, is not an "express authority of law” People v. Hagar, 52 Cal. 188; Whiting v: which can authorize a contract which will be the Toron send, 57 Cal. 515; Faekler v. Wright, 86 basis for a claim against the state, under Const. art. 4, $ 32, requiring "express authority of law” Cal. 210; Cole v. Segrares, 88 Cal. 105; De Baker therefor, and $ 15 of the same article providing v. Southern California R. Co. 106 Cal. 257. that "no law shall be passed except by bill."

The state is not estopped. 3. A state is not estopped from denying the

Martin v. Zellerbach, 38 Cal. 300, 99 Am. validity of a contract made without authority, Dec. 365. because the contractor has in good faith performed services under it, since he must at his Van Fleet, J., delivered the opinion of peril know the authority of tbose who seem to the court: act for the state.

Appeal from the judgment entered upon

failure to amend after demurrer sustained to (October 24, 1896.)

the complaint. The complaint is in two counts.

The first count alleges the following facts: A a .

Superior Court for the City and County and the 1st day of May, 1891, the plaintiff renof San Francisco in favor of defendant in an dered services to the defendant, at its special action brought to recover compensation for instance and request, as the agent of said state, services rendered to the state. Affirmed. in acting in its behalf in the matter of recover. The facts are stated in the opinion.

ing certain moneys paid by the state to the Messrs. Reddy, Campbell, & Metson, United States under the provisions of a certain for appellant:

act of Congress approved August 5, 1861, enIt is not the office of a demurrer to state facts titled “An Act to Provide Increased Revenue but to raise an issue of law upon the facts stated from Imports to Pay Interest upon the Public in the pleadings demurred to.

Debt, and for Other Purposes;” that the defendCook v. De la Guerra, 24 Cal. 237; Wise v. ant promised to pay plaintiff therefor 20 per cent Williams, 72 Cal. 544; Harmon v. Page, 62 Cal. of all such moneys collected by him from the 448; Cameron v. San Francisco, 68 Cal. 391. United States; that thereafter plaintiff col

The words "authority of law” bave a broader lected from the United States, as such agent, meaning than that of a valid statute law enacted and caused to be paid to said state, the sum of in the manner prescribed in the Constitution $216,357.87; that no part of said 20 per cent for the passage and approval of a bill.

of said sum has been paid to plaintiff; and that Miller v. Dunn, 72 Cal. 462; Lycoming F. said plaintiff has presented his claim for the Ins. Co. v. Wright, 60 Vt. 515.

sum due him to the state board of examiners, The sovereignty of a state gives it inberent as provided by law, and said board has refused powers to contract,

to allow said claim, either in whole or in part. Piqua Branch of State Bank v. Knoop, 57 The second count is upon a similar cause of U. S. 16 How. 375, 14 L. ed. 979.

action for a smaller amount. The demurrer The legislature cannot create law otherwise was sustained upon the ground that the alleged than by a formal bill passed and approved by employment of plaintiff was unauthorized and the executive.

void, and created no valid obligation against Brooks v. Fischer, 79 Cal. 173, 4 L. R. A. 429. the state. It is suggested by appellant in

The state is now estopped from denying the limine that this objection does not arise on validity of the contract made with plaintiff. demurrer; that the allegation that plaintiff was

Davis v. Gruy, 83 U. S. 16 Wall. 203, 21 L. employed by the state as its agent is one of ed. 447; Hall v. Wisconsin, 103 U. S. 5, 26 L. fact, and is admitted by the demurrer; that, if ed. 302; Indiana v. Milk, 11 Fed. Rep. 309; such employment was not legal because made Piqua Branch of State Bank v. Knoop, supra. I in a manner not binding upon the state, that

NOTE.- As to resolution as distinguished from For resolution distinguished from ordinance, see statute, see also State, Cranmer, v. Thorson (S. D.) Crawfordsville v. Braden (Ind.) 14 L. R. A. 268: 33 L. R. A. 552; State, Wineman, v. Dahl (N. D.) Shaub v. Lancaster (Pa.) 21 L. R. A. 691. ante, 97.

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