— I dissent. The effect of the majority opinion in this case makes the 1915 Improvement Bond Act bonds general obligations of the municipality in violation of section 18, article XI of the Constitution of California and renders said act unconstitutional. Section 18 of article XI forbids a municipality from incurring any indebtedness or liability exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the qualified electors. It also renders said act violative of section 12 of article XI of said Constitution which provides:
“Except as otherwise provided in this Constitution, the Legislature shall have no power to impose taxes icpon counties, cities, towns or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.” (Emphasis added.) It cannot be doubted that if a mandatory obligation is imposed by the Legislature upon the municipal corporation, such imposition is a violation of section 12 of article XI above quoted. That necessarily follows because the amount of revenue available to a municipality is dependent upon the exercise of the taxing power, and if the Legislature by statute commands a city to pay an obligation, it has also commanded the city to levy a tax which is no different from a direct levy of the tax *269by the Legislature, that which is forbidden by said section 12 of article XI. It is stated in 46 A.L.R. 628:
“Saddling a debt or burden upon a municipality which can be lifted only by municipal taxation is quite clearly the equivalent of imposing a tax. Hence, where a Legislature is inhibited from imposing a tax for corporate purposes, or forbidden to authorize a municipality to impose a tax for any other than corporate purposes, it is also prohibited from thrusting a burden upon a municipality, if the object of the burden is to effect a corporate purpose.” And again at page 640:
“While the rule has apparently been overlooked in some instances, it has been established by a considerable number of cases that the legislative imposition of obligations or burdens upon municipalities which must of necessity be lifted or fulfilled by municipal taxation or bonds is the equivalent of the direct imposition of taxes, for what the legislatures cannot do directly under the provisions they cannot do indirectly.” Those propositions are supported by the authorities. (See 46 A.L.R. 609, 640.) The majority opinion holds that the city’s obligation to pay the purchase price of the property sold for delinquent assessments is mandatory; that the city has no discretion but must sell the property at a tax sale rather than follow the foreclosure procedure for the recovery of the delinquent assessments; that it must be the purchaser at that sale if there are no others; and that it must levy a ten cent tax to pay that purchase price from year to year until it is discharged. There could not be a clearer case of a violation of section 12 of article XI of our Constitution.
The opinion on its face declares that the obligation is a mandatory one. In giving the reason that the act does not violate the debt limitation provision of the Constitution (Art. XI, sec. 18) the opinion states:
“In this connection the respondents finally argue that if the city cannot escape the imposed liability involved in the tax procedure, by ordering foreclosure suits, the bond act is unconstitutional as violative of the provisions of section 18 of article XI of the state Constitution, prohibiting the incurring of any indebtedness or liability exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the qualified electors. A complete and conclusive answer to this contention appears in the Lakeport case, wheré this point was strenuously urged and thoroughly *270considered at pages 559-560, and the court, after a full discussion and analysis of the cases upon which the respondents here place special reliance, held that the obligation of the municipality to pay as the purchase price of property sold to it at tax sale the amount due on delinquent bonds secured thereby, is imposed by law and therefore it is not a liability within the constitutional limitation.” (Emphasis added.) The obligation is declared to have been imposed by law. The only “law” involved is the Bond Improvement Act of 1915, an act of the Legislature, the very kind of legislation prohibited by section 12 of article XI of the Constitution. The opinion unquestionably poses a dilemma from which there is no escape. If it be urged that there is no violation of section 12 of article XI, as suggested in American Co. v. City of Lakeport, 220 Cal. 548, 555 [32 P.2d 622], because:
“ The city may or may not order the local improvement, but, if it does, the assessment for the benefit of the guaranty fund must be made, and this is imposed by the city and not by the act of the legislature,” (italics added) then it necessarily follows that the city voluntarily assumed the obligation by launching upon the improvement. If that be true, then the obligation is not a mandatory one imposed by law and is an incurring of an indebtedness in excess of the revenues contrary to the debt limitation provision of the Constitution. (Art. XI, sec. 18.) That is why I say that there must necessarily be a violation of one of those two constitutional inhibitions. The very reason given for the nonexistence of a violation of one of those provisions inescapably compels the conclusion that the other has been thwarted, or vice versa. Certainly no such illogical reasoning should be indulged in as the basis for a decision in any case, let alone be used as a means of nullifying two clear and explicit prohibitions in the Constitution.
The point is made in the majority opinion that because the Legislature declared the remedy by foreclosure action to be cumulative, the city has no choice in the matter but must proceed with a tax sale even though they are pursuing the foreclosure remedy. That gives a wholly unjustified meaning to the word cumulative. Cumulative is in addition to and always carries with it the right of the possessor of the remedy to elect between it and any other remedy. It certainly does not contemplate that the remedies could be pursued concurrently. A cumulative remedy is one created by statute in *271addition to one which still remains in force, and when a statute gives a new remedy, and contains no negative, express or implied, of the old remedy, the new one is cumulative and the party may elect between the two. (Bowles v. Neely, 28 Obla. 556 [115 P. 344]; State v. Barboglio, 63 Utah 432 [226 P. 904] ; Chicago & N. W. Ry. Co. v. Chicago, 148 Ill. 141 [35 N.E. 881].) Here the city is the possessor of the remedies and has elected to pursue the foreclosure proceeding. To assert, as is done in the majority opinion, that the city has no discretion to make that election because by the whole tenor of the Improvement Bond Act the bondholders are entitled to have the property sold at tax sale, the city become the purchaser, and the levy of a tax to pay the purchase price, not only divests the city of all discretion in its taxation powers in violation of article XI, section 12, but also is squarely contrary to the whole purport of the act, that is, that the bonds issued thereunder are not a general obligation of the city. In Hammond v. City of Burbank, 6 Cal.2d 646, 654 [59 P.2d 495], this court positively and unequivocally declared that “. . . the bonds are in no sense general obligations of the city.” (Italics added.) But the majority opinion, while giving lip service to that proposition undeniably makes the bonds the general obligations of the city. There can be no escape from that conclusion as it is there held: (1) That the city must sell at a tax sale rather than foreclose. (2) That it must be the purchaser at that sale if there is no other, purchaser. (3) That in all probability there will be no other purchasers. (4) That not only must it levy not exceeding a ten cent tax to pay the purchase price for one year, but it must continue thereafter to levy a similar tax in the years thereafter until the purchase price has been paid in full. The majority opinion concedes that the great probability is that the city, eventually will have to pay all of the bonds by a general tax levy. What more is required to make these bonds general obligations of the city? The answer is obvious. An obligation which a municipality can be compelled to pay out of funds raised by a general tax levy is a general obligation. Can there be any doubt that under the holding in the majority opinion the improvement bonds in question are not declared to be general obligations of the city of Lakeport ? To answer this question in the affirmative is to deny the existence of a reality.
I cannot agree with the interpretation placed upon sub*272division c of section 11 of the Improvement Bond Act of 1915 by the majority opinion. Obviously, it was the intention of the Legislature to confer upon a municipality the power to recover delinquent assessments by foreclosure proceedings in a court action in lieu of the conventional delinquent tax sale, and that such court action was to be in lieu of or a substitute for such delinquent tax sale. If such was not the intention of the Legislature, why was the following provision embraced within said section ?
“Upon the ordering of any such foreclosure suits, the tax collector shall be credited upon the assessment-roll then in his hands with the amount charged against him on account of such assessments or reassessments ordered to suit and be relieved of further duty in regard thereto.”
The majority opinion concedes that if the foreclosure proceeding is consummated and the property sold for a sufficient sum to cover the delinquent assessment and penalty, no delinquent tax sale of the same property for the same assessment is required. The query then arises as to whether a delinquent tax sale can be required so long as a foreclosure proceeding is pending; in other words, can a municipality be required to conduct a "delinquent tax sale of property subject to a delinquent assessment when it is proceeding diligently to foreclose the assessment lien by an action in the superior court. The unqualified holding in the majority opinion that a city can be compelled by writ of mandate to proceed with a delinquent tax sale in accordance with the provisions of the act regardless of the pendency of a foreclosure proceeding justifies the conclusion that it is the opinion of the court that whatever action the city might institute in accordance with the provisions of subdivision c of section 11 of the act is ineffective.
It seems to me that the majority opinion ignores the clearly expressed intention of the Legislature contained in section 11 of the act and that a proper interpretation of the provisions of this section requires that the judgment of the trial court in this action should be affirmed.
Respondents ’ petition for a rehearing was denied December 28,1942. Carter, J., voted for a rehearing.