concurring.—I concur in the judgment, and also in that portion of the opinion of Mr. Justice Van Fleet in which he discusses the effect of the provision in the- ordinance making the interest upon the bonds payable out of the state.
I am of the opinion, however, that the recitals in the ordinance respecting the bonds which are to be refunded sufficiently show that a portion thereof were issued prior to the year 1880, and another portion subsequent to that year. It is unnecessary, therefore, to determine whether section 4445 of the Political Code is still in force, as that section by its terms authorizes the issue of bonds for the sole purpose of refunding an indebtedness which existed on the first day of January, 1880, while the bonds sought to be issued by the proceedings under consideration are for the purpose of refunding an indebtedness of which the greater portion did not exist at that date.
The act of 1883, as amended in 1893 (Stats. 1893, p. 59), and under which the proceedings were had, was again amended in 1895. (Stats. 1895, p. 203.) The effect of this amendment was to deprive the city council of all power to issue refunding bonds, except in accordance with its terms; and the latter act is the sole authority by which to determine the power of a municipality to' issue any refunding bonds, as well as the mode in which that power is to be exercised. This act was adopted March 27, 1895, and took effect immediately, and, although the election by the voters of Los Angeles was held March 21, 1895, the vote was not canvassed until April 1st, and the ordinance for the issue of the bonds was not adopted until April 8th. As no contract had been entered into, and no vested right had accrued by reason of the steps that had been taken for the issuance of these bonds, the effect of the act of 1895 was to repeal all the provisions for their issuance that were not pre*332served in the amended act, and to render nugatory all the steps that had been taken by virtue of those provisions. (Lamb v. Schottler, 54 Cal. 319.) Under the act, as thus amended, no election by the voters is required as a preliminary step, but the governing power of the city is empowered to refund the outstanding indebtedness, and issue bonds therefor, “by a vote of four-fifths of its members.” The validity of the election is, therefore, not involved, and as the act confers no authority to sell the bonds when issued, except in special instances, there can be no additional liability created by the mere issue of the bonds.
To entitle the petitioner to the writ of mandate against the respondent, it was necessary to set forth in its petition all the facts which rendered it his duty to sign the bonds. This duty did not exist unless the ordinance for their issuance had been adopted by a vote of four-fifths of the members of the city council, and the petition should have so stated. As the adoption of an ordinance for the issuance of bonds would not give any validity to the bonds, or authorize their issuance, unless the ordinance was adopted by the requisite vote, the mere averment that the city council “ adopted an ordinance providing for the issuance of said bonds,” does not sufficiently show that the ordinance was passed in accordance with the requirements of the statute, or that it was incumbent upon the respondent to sign the same.
Rehearing denied.