Gamble v. City of San Diego

Decision Date22 March 1897
Citation79 F. 487
CourtU.S. District Court — Southern District of California
PartiesGAMBLE et al. v. CITY OF SAN DIEGO et al.

Works &amp Works, Works & Lee, and Trippet & Neale, for complainants.

H. E Doolittle, Gibson & Titus, and W. J. Hunsacker, for defendants.

ROSS Circuit Judge.

This is a suit in equity, the bill in which was filed in this court August 27, 1896, not only on behalf of the complainants, but according to its averments, on behalf of all other property owners and taxpayers of the city of San Diego who are not citizens of the state of California. The bill alleges, among other things, that the complainant William A. Gamble is a resident and citizen of the state of Ohio, and the complainant Elvira Carver is a resident and citizen of the state of Massachusetts, and that all of the defendants are residents and citizens of the city of San Diego, state of California; that each of the complainants is the owner of real estate in the defendant city; that the amount of taxes that each of the complainants would be compelled to pay by reason of the levying of the taxes necessary to pay the principal and interest of the bonds mentioned in the bill will exceed the sum of $2,000, and that the property owners and taxpayers of the defendant city who are not citizens of the state of California number about 700, and each of them has a direct interest with the complainants in the relief sought by them; that the population of the defendant city has never at any time mentioned in the bill exceeded 20,000 inhabitants; that the average daily consumption of water by the city and its inhabitants, for all purposes, during all of the times mentioned in the bill, has never exceeded 150 miner's inches of water per day; that the defendant city is now receiving, and since June 25, 1889, has received, its supply of water for all purposes from the San Diego Water Company, a corporation organized under the laws of the state of California to supply and sell water to the city and its inhabitants for a compensation to be charged therefor as fixed by the legislative branch of the city council from time to time as required by law; that the San Diego Water Company, for the purpose of carrying on its said business, secured from the city a franchise to lay and maintain in and along the streets, lanes, and alleys thereof its water mains and pipes, and to furnish, through such system, water to the consumers of the city, and at all the times mentioned in the bill has furnished water to the city and its inhabitants for all useful and necessary purposes; that, in and by section 14 of article 11 of chapter 2 of the special charter of the city of San Diego, it is provided that all ordinances incurring indebtedness or liability against the treasurer of the city must, before being passed by the common council, be presented to the city auditor, and, until he certifies in writing upon the ordinance that such indebtedness can be incurred without violation of the provisions of the charter, no further action shall be had upon the same by the common council; that on the 7th day of May, 1896, the common council of the defendant city, by ordinance adopted by it, assumed and attempted to authorize the execution by the mayor of the city of a certain contract on the part of the city with the defendant Southern California Mountain Water Company, a corporation organized under the laws of the state of California, which ordinance is set out in the bill; that thereafter, and on the 9th day of May, 1896, the mayor of the city and the Southern California Mountain Water Company assuming to act in pursuance of that ordinance, entered into the contract which is set out in full in the bill; that on the 5th day of June, 1896, the common council of the city assumed and pretended to pass and adopt an ordinance calling a special election submitting to the voters of the city the proposition of the incurring of a debt for the purpose of paying for the water rights, rights of way, distributing system, and other property mentioned and described in the contract between the city and the Southern California Mountain Water Company, which ordinance the bill sets out at large; that each and all of the ordinances above mentioned were passed and adopted by the common council of the defendant city before and without obtaining the certificate of the auditor of the city upon such ordinance, or otherwise, that the indebtedness or liability created by such ordinance could be incurred without the violation of any of the provisions of the charter of the city; that the debt and liability sought to be created by virtue of the contract between the city and the Southern California Mountain Water Company could not be paid out of the revenue provided for the fiscal year of 1896, or for any of the years following; that at the time of the execution of the contract there had been no assent of two-thirds of the qualified electors of the city voting at an election held for the purpose of obtaining their assent to the incurring of such indebtedness and liability; that on the 5th day of June, 1896, the common council assumed and pretended to pass an ordinance by which the common council assumed to provide for the publication of the notice of a special election to be held in the city on the 27th day of June, 1896, to vote upon the issuance of the bonds, amounting to $1,500,000, for the purposes specified therein, which ordinance the bill sets out in full; that the clerk of the defendant city, in pursuance of the ordinance last mentioned, published a notice of such special election, to be held in the city, for the period of two weeks prior to June 27, 1896, in the San Diego Sun, the official newspaper of the city of San Diego; that on the 11th day of May, 1896, the common council of the defendant city ordered and directed that the contract of May 9, 1896, between the Southern California Mountain Water Company and the defendant city, and the plans and estimates of the engineer, be printed in book form, and copies thereof sent to the registered voters of the city; that the board of public works of the city caused the contract and plans and estimates to be published in book form, and thereafter, on or about June 10, 1896, the clerk of the defendant city, under and by virtue of the order of the common council, mailed and caused to be mailed a copy of the contract, plans, and estimates to the registered voters of the city, as directed by the council; that in pursuance of the ordinance mentioned an election was held in the city on the 27th day of June, 1896, at which election the question of issuing bonds of the city in the sum of $1,500,000, for the purposes in the ordinances set forth, was voted upon, and was by the electors, as shown by the tally sheets of the election, carried by a vote of more than two-thirds majority of the voters voting at the election; that the proposition, as submitted to the voters of the city, was a joint proposition for the incurring of an indebtedness for the acquisition by purchase of the water, water rights, and other property, as shown by the ordinance, and the construction of a public improvement for the city, to wit, a distributing system, rights of way, and reservoirs,-- the vote, as called for and given, being upon a proposition to incur an indebtedness for both such acquisition by purchase of said property and the construction of such improvement in the gross sum of $1,500,000, and not separately.

The bill further set out the form of the ballots submitted and voted at the election, and alleged that, before the question of incurring the indebtedness was submitted to the vote as aforesaid, the common council of the defendant city had caused to be made what purported to be plans and estimates of the cost of the proposed improvement, but that the purported plans and estimates were not such in fact, for various reasons specified in the bill. The bill further alleged that the contract between the defendant city and the Southern California Mountain Water Company was made and executed before the election was held, and without any notice given by the council inviting sealed proposals for furnishing the labor and materials for the proposed improvements, nor have such bids ever been made; that the notice given by the council of the special election did not set forth fully or correctly the purposes for which the indebtedness was to be incurred, as required by law; that the purpose for which the indebtedness was to be incurred was for the carrying out of the contract between the defendant city and the Southern California Mountain Water Company, and the payment of the sums of money therein provided for, at the times and in the manner therein specified, and not otherwise, and that, unless enjoined from so doing by this court, the common council and officers of the defendant city will use the money derived from the sale of the bonds in making the payments provided for by the contract, and, in order to procure the voting of the bonds, it was represented by the defendants and others who supported the measure at the polls that the contract was the one under which the money derived from the bonds would be expended, and copies of that contract were, by order of the council of the defendant city, mailed in printed form to the voters of the city, and represented it to be the basis for the proposed bonds, and the voters were thereby induced to, and did, vote therefor, with the understanding and belief that the moneys to be realized therefrom would be used to carry out the contract, and would not otherwise have voted therefor; that the contract and the execution thereof were unauthorized and in violation of law, and beyond the power of either the defendant city or the Southern California Mountain Water Company to make, for...

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12 cases
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
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    ......v. National. Land Imp. & Mfg. Co., Id . 575; In re Hall &. Stilson Co., 73 F. 527; Gamble v. City of San San. Diego, 79 F. 487, 500; Atlantic Trust Co. v. Woodbridge. Canal & Irrigation ......
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    ...... Jesup, 15 C.C.A. 397, 68 F. 263, 279; Foley v. Hartley, 72 F. 570, 573; Gamble v. City of San. Diego, 79 F. 487, 500. It follows from the views. expressed in the foregoing ......
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1 books & journal articles
  • An historical analysis of the binding effect of class suits.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 6, August 1998
    • 1 Agosto 1998
    ...707-09 (C.C.W.D. Pa. 1901) (finding a prior state court proceeding preclusive in a subsequent federal suit); Gamble v. City of San Diego, 79 F. 487, 500 (C.C.S.D. Cal. 1897) (noting that a pending federal representative suit precludes initiation of a second such (267) 131 U.S. 319 (1889). (......

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