Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-04-17

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! been SET apart and paid by said Trustees int
/ the said interest and sinking iuad and tia
| they have paid iuto said fund only 375 De
cent. OF said S70.00U. amounting only to $40,
| go
Nov, in the first place, the complaint al
leges that there ere $1,000 in said interes
fund; ard as plaintiff claims only S23, 100 2
due on bis coupons, cannot see how he ha
| g legal right TO sny moneys not in said fund
But, in the second place, the complain
merely alleges that so, 900 were "collecte,
for water rents" and it goes upon the theor1
that, under the sepealed Act Of 1858. th
Trustees sre compelled 10 pay into the inter
est fluid % per cent. Of ali the water repts--
that Is, from the gross receipts from tina
source CT revenue. But the Act Of 1868, in
cooperating the present city Of Sacramento
and by which Che Trustees are governed, ez
pF5ssly provides that only IS per cent. of tht
net water rents shall be p4id into said fund
1t creates q new fund, called the 81 Wate,
| Wofks fund" Il provides that all revenue
derived from the Water Works shall be frs
paid into said Water Works fund, and thai
after the payment of all necessary expen ses
including saialias, to carry on and keep il
order thu said Water Works, the residue. il
any there be" shall then bs apportioned &c
the other funds. (Stat. 1868, p. 426, Secs
&c, ~.
Clearly, therefore, in order to havs stated
cause OF action, the complaint should have
alleged that there were net water rents after
satisfying the Water Works fund as atore
said.
The only answer sought to be made to thi,
proposition is that the Legislature had &c
constitutional power to enact that part of tbs
said statute Of 1868 which deals with the rev.
enue from wafer rents, because it impairs the
obligations of contract. Upon this point
| have no doubt municipal corporation is o
mere creature of the Legislature, and tbs
Legislature can not only alter its revenues and
funds, but can abolish both, or destroy the
corporation ITSELF It might have provided
that no more water rents should be collected
ihsn were necessary to carry on the Watt I
Works. or that the net proceeds should go
into the school fund, or that no water rents
should be charged at sl.
Especially is this the law in California,
where it has been frequently decIaIe;. by the
highest Court that municipal corporation is
3 part Of the Stste government, aad clothed
as &c its contracts and liabilities with tie at
tributes Of sovereignty.
In Hunssker vs. Borden e Cal, 290), the
Court says: "a county government Is a por-
ton OF the State government, and the equity
debt created by authority of law is a part OF
tbs State debt, and in the same manner as
there is no remedy against the State there
may be none against the county. The SOW
e7eign cannot be sued in whate yrr.EasJn she
may eve, whether through her OVID principal
treasury or one of her subordinate treasures,
uniess by her own consent. Her creditors
have nothing TO rely on except her good faith,
and she has equally the power TO postpone
the time of payment, or to refuse to pay
at all
Iu Sharp VS.. Contra Costa County "a Cal =,
290), the Court says: 1.-THE law Of contracts
as between private individuals, invoked by
the learned counsel for appellant. does not, as
we consider. furnish the rule for decision in
this case. In this case o sover-
eign Is one of the contracting parties fer
the Government of the county Of Contra
Costa is portion Of the State Government.
and as against q sovereign there are no lem
edies exceptSsuch as the sovereign, in the ex.
ercise of that good faith by which sill Govern
ments are presumed so be actuated, may
accord. The State Government, neither in its
general nor its local capacity, can be sued hy
her creditors or made amensble TO judicial
process except by her own consent. Her
creditors must rely solely upon her coed faith
as to the time, mode and measure CT pay
ment."
The same decision is declared in the City
and County of San Francisco vs. Beideman
az Cai., 1872; McCaulv Va. Brooks DC Cal,
80; Temple vs. Doe (36 Cal, 229); Rose Va.
Estndillo (39 Cal, 275); Siaton VS.. Ashbury
al Cal, 800.
There are many other California esses to
the same point. It viii be noticed that IN
many of the cases the municipal corporation
involved WAS a city, and that the same rule IS
applied to cities as TO counties. Cities sre pat
in tire same category with counties, particu-
larry in the cases of Temple W.. Doe CSC Cal,
223), and Winbigler VS.. City of Los Angeles
AS Cal, 36). In the latter case the Court
says: 'Iucotp cities in this State are
mare governmental instruments fol med under
the State laws for the purposes of internal ad
ministration. They are nos distinguishable in
principle from counties created by laws for
the sams purpose" page So
The Supreme Court OF the United States,
in the csse of Merryweather VS., Garrett (102
u. s., 472) uses this language:
The right Of the State to repeal the char
ter of TIE city Of Memphis cannot be quss-
toned. Municipal corporations are mere
instruments of the State for the more con-
venient administration of local government
= There is no contract between the
State and the public that the charter of a city
shall not be at all times subject to legislative
control. All persons who deal with
such bodies are conclusively presumed 10 act
upon knowledge of the power of the Leg:-
lature. There ia no such thing as vested
right held by shy Individual in the grant of
legislative power to them"
Il is clear TO my mind from the foregoing
that the Legislature had the power
TO control the revenues to be derived fl, m
water rents, and that therefore the complaint
states no cause of action against the Trustee.
And this would be SO even if the Act cf 1858,
under which the bonds were issued, had pro-
yided remedy which the Act ct 1868 had
taken away. But, in fact, no remedy at sll
was provided by the Act of 1858. By its
terms the corporation c5uid not be sued Sin
any action whatever" and its revenues were
not subject $50 any process whatever"
The remaining question is, Can the City
Treasurer be compelled by writ OF man
date to deliver to the plaintiff from TIE City
Treasury the amount of money alleged TO be
due on the coupons described in the COM
plant?
A coed deal of argument was expended on
the question whether or not mGndsmus is the
proper remedy. Undoubtedly it is, If it be
the clear legal duty Of the Treasurer to pay
the money. Replevin is certainly the proper
seton to recover horse. and ejectment to
recover land ; but il in the one instance the
plaintiffs failed to show right to the horse,
and in the other right to the land, it would
avail him nothing to assert that he had pur
sued the proper remedy. And SO while man.
damus is the proper remedy to compel pub
lie officer TO perform sn act specially en-
Joined by law, the question here is whether or
not the act sought to be enforced is not of
that character.
1t is to be observed that the Court cannot
make an order that the Treasurer pay over the
money to plaintiff unless it is the duty of the
Treasurer to do so without such order. Ia
other words, this Court cannot assume the
of the financial affairs of the
city, and from business or moral standpoint
determine whether the money ought to be
paid. To do 30 would be to usurp political
Dower-to GUST the government of the city
Of its jurisdiction and put this Court in its
place. The Court can only act judicially. and
can deel only with the legal duty of the
Treasurer.
The duties Of the Treasurer must be gath
cred from the Act OF 1868, which creates his
office, and that Act merely provides that ''the
Treasurer shall perform such duties as may be
imposed on him by law. ordinance or order of
the Trustees" (Sec. 80
Now, in the first place, it is not alleged
that there is any order of the Trustees " re-
curing the Treasurer to pay the money to
In fact, it was understood at the
argument that the Trustees had directly or
dered him not to pay it.
In the second place, It is not sllsged or
claimed that there is any "or6inancs " re-
quiriug him to pay it.
In the third place, IL there any s'law" which
epjoins upon the Treasurer the ab-
solute ministerial duty of paying plaintiffs
&Io.. L