Santa Ana Water Co. v. Town of San Buenaventura

• Decision Date: 14 January 1895
• Docket Number: 461.
• Citation: 65 F. 323
• Court: U.S. District Court — Southern District of California
• Parties: SANTA ANA WATER CO. v. TOWN OF SAN BUENAVENTURA et al.

65 F. 323

SANTA ANA WATER CO. v. TOWN OF SAN BUENAVENTURA et al.

No. 461.

United States Circuit Court, S.D. California.

January 14, 1895

Lamme &amp Wilde, for complainant.

W. E Shepherd and George J. Denis, for defendants.

ROSS District Judge.

When this case was before the court on demurrer to the bill, it was held that the contract entered into January 4, 1869 between the defendant corporation and Jose De Arnaz, Victor Ustassaustegui, and Francisco Molleda, in so far as it reserved to those parties the 'unrestrained right to establish such rates for the supply of water to private persons as they may deem expedient, provided that such rates be general,' and subject, also, to the implied condition that the rates be reasonable, was a valid contract in the hands of Arnaz and his associates, and passed by assignment to the complainant corporation. The facts upon which those rulings were based were admitted by the demurrer filed by the defendants to the bill. Subsequently, defendants answered the bill, and, upon the issues thus joined, proofs were taken and the case has been heard on its merits. Except in respect to two affirmative defenses, the proofs establish the same facts as formed the basis of the rulings upon demurrer; and as I am satisfied of the correctness of the conclusions then reached, and with the reasons given in support of them, it is not necessary to go over that ground again. The case on demurrer will be found reported in 56 F. 339.

The affirmative defenses referred to are the following: The board of trustees of the defendant corporation, under the law creating it, consisted of five members, but three of whom-- Tico, Chateneauf, and Escandon-- were present and authorized the execution of the contract in question. Tico had previously been elected clerk of the town, and accepted the position, and Chateneauf had been elected, and accepted the position of, treasurer thereof, each of whom, the defendants contend, thereby vacated his office as trustee, which, if true, left only one member of the board of trustees-- Escandon--taking part in the execution of the contract on the part of the town. The answer also alleges that Chateneauf had a direct pecuniary interest with Arnaz, Ustassaustegui, and Molleda at the time of the making of the contract, and that other trustees had such adverse interests at the time of its subsequent attempted ratification which rendered their acts on behalf of the town in respect to the contract void and of no effect.

In respect to the first of these defenses, it is contended on behalf of the defendants that there is such incompatibility between the office of trustee and clerk and trustee and treasurer of the town as rendered the acceptance by Tico of the clerkship a vacation of his office of trustee, and a like vacancy of Chateneauf's office of trustee by his acceptance of the position of treasurer. As pointed out in the former opinion herein, the defendant corporation is a municipal corporation, created by an act of the legislature of the state of California entitled 'An act to incorporate the town of San Buenaventura,' approved March 10, 1866 (St. 1866, p. 216), and was thereby invested with all the rights and privileges conferred by, and was made subject to all liabilities, restrictions, and provisions of, an act entitled 'An act to provide for the incorporation of towns,' approved April 19, 1856 (St. 1856, p. 198), so far as the provisions of that act may be consistent with the provisions of that of March 10, 1866. It is provided by the act creating the defendant corporation that its officers shall consist of a board of five trustees,-- a treasurer, a clerk (who shall be ex officio assessor), a marshal (who shall be ex officio collector), an attorney, and a surveyor; and with the exception of the first board of trustees, designated by the act itself, it provides that they shall be elected by the qualified electors of the town, and shall hold their office for the term of two years, and until their successors are elected and qualified. It is also provided that the treasurer, clerk, marshal, collector, attorney, and surveyor shall be appointed by the trustees, and shall hold their office for two years, unless sooner removed for misconduct or neglect of official duties. The seventh section of the act makes it the duty of the clerk to keep the books, papers, and documents of the board belonging to the town, to attend all meetings of the board of trustees, and keep a record of all its proceedings, sign all warrants issued by order of the board, and keep an accurate account in a suitable book of all such warrants, their number and date, and assess all taxes levied by the board of trustees. By the eighth section it is declared that the treasurer shall take charge of all moneys of the town, pay all warrants, which shall first be signed by the clerk and countersigned by the president, and keep a correct account of all moneys received and paid out by him, and make due report thereof once a month to the board. By the eleventh section it is provided that the trustees shall elect one of their number president of the board, and that the president chosen shall act as town recorder. Jurisdiction over certain offenses committed within the corporate limits is committed to him, and he is authorized to receive in such cases the same fees as were then allowed by the laws of the state to justices of the peace. The fifteenth section of the act provides: 'The compensation of the board of trustees shall be one dollar per annum. The officers appointed by the board of trustees shall receive for their services such sums as the board may direct.'

It will be observed that, while the act creating the defendant corporation provides that the trustees shall appoint a clerk and treasurer, it is silent as to whether such appointments shall be made from their own number or from without the board. On special provision is made therein regarding vacancies in the office of trustee, but the general act for the incorporation of towns of April 19, 1856, the provisions of which, except where inconsistent, are expressly made applicable to the defendant corporation by the act creating it, provides what shall cause a vacancy in the office of trustee; that is to say, removal from the town, absence therefrom for 30 days after election, and, if bond is required, neglect to file such bond within 10 days after election. St. 1856, p. 198. And the act of the legislature of the state of April 22, 1863, regarding offices and officers (Hitt. Gen. Laws, p. 693), declared what should constitute a vacancy in office, among which causes are not enumerated incompatibility of offices or acceptance of another office. This statutory enumeration of causes constituting a vacancy in office has been held by the supreme court of the state to be exclusive (Rosborough v. Boardman, 67 Cal. 118, 7 P. 261, and cases there cited), and settles the question in relation to the alleged vacancies in the office of trustee of the town of San Buenaventura at the time of the making of the contract in question against the contention of defendants regardless of any other...