Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-02-07
THE CITY INTEREST COUPON CASES IN
COURT.

COURT.
Monday the cases OF Daniel Meyer and +.
Roeding vs.. The Board of Trustees. Treag-
urer and Auditor Of the City of Sacramento.
upon petition for writ of mandate TO compel
the payment of 80 per cent. Of gross water
rents into the sinking and interest fund,
and also to ccmpsl the City Treasurer to pay
49,, 900 coupons for the years 1s79-So-S1-S2,
came up for argument upon the demurrers Of
the defendants. The defendants we're repre-
sented By City Attorney Anderson and j. III.
McKune. The plaintiffs appeared By their
attorneys, Rosenblatt & Sheeline and 5. g.
benson.
The D. in's made by defendants counsel
upon 6emurrersrs as follows: That there is
nisj Under Of PARTISAN action for man
date against the Treasurer to pay coupons
cannot be Joined with proceedings against the
Board of Trustees to apportion fu DIS, nor
against the Auditor for sams purpose; that
there is also misjoinder of causes OF action,
it appearing that if any action exists, it
mus. be against the parties separately; that
the Treasurer can only do what 10 en-
joined upon him by law and the order Of
the Board of Trustees; that he has done this,
therefore mandate will not lie; that the
fund known as the sinking and interest fund
is trust fund, and that mandate cannot be
Invoked against trustee; that the Treas
urer is the trustee for all the bondholders and
coupon-holders, and that Court of Law will
not interfere thst this is the province of
Court of equity only that Courts OF equity
viii not permit one ceStvy que trust to gain
an advantage over another; that 1t does
not appear that either the Treasurer, uditor
o- RTord Of rr,ataes hava failed tn nona nv,
with all and every provision of the law that
plaintiffs have mistaken their remedy, if any
remedy exists that no demand has ever been
made upon the Board Of Trustees as required
by the organic law, without which no cause of
action can be maintained; that the Board Of
Trustees have complied with the Act of 1868
Charter in appro priating So per cent. of the
net water rents to the sinking and interest
fund, AMI that this Act repeats the Act of
1858, which provided fer So per cent. of
tie gross water rents for that fund;
that if the strict letter of the law
Of 1858 should be insisted upon, it will
appear, under the Water Works Act Ct 1872,
that the present Water Works are entirely
different from those mentioned in the Act of
1858; that the present municipal corporation
never assumed the obligations of the "city
and county of Sacramento = that the only as
sumption is conditional one prescribed un-
der Sections Al to As of the charter, of which
the bondholders never awaited themselves;
that the charter Of 1868 by express terms ex-
empts it from any liability upon any ''bonds,
contracts, obligations, etc." created prior to
April %, 1868, and all these obligations were
created prior to that date; that the proceed
ings in these cases ct bar involve the levying
of process, original, mesne and final, against
and upon the revenue, income, taxes, etc., OF
the city, and which is expressly prohibited by
Section / of the city organic law; that the
Act Of 1858, under which the alleged bonds
were Issued, contained the same restriction,
and that all the creditors accepted the bonds
under the express contract that under no cir.
cumstance should suit ever be maintained
against the city or its revenue, taxes, income,
etc., for the collection thereof, and these con-
ditions were reiterated in the Act of 1868
that the State can avail itself of its sovereign
power and exempt itself from suit; therefore.
the municipality being a part of the State
and one of its agents of Government, it is
competent for the Legislature to exempt it
in the same manner; that it appears from
the petitioners own showing that there is an
outstanding liability of over 81, 600, 600, and
that the 100000 now in the sinking and IT,
terest fund must necessarily be held by the
Treasurer in trust for all the coupon holders.
and that to compel him to pay it out to any
one or two would be unjust to others of prior
or equal right; that there are no bonds
against Z" the city of Sacramento authorized
by the Act of 1858, and ell the bonds or cou.
poHs purporting to be the bonds or coupons
of "the city of Sacramento are illegal and
void, because Section 80 of tbs Act OF 1858
provides only for the issuance of bonds of
the city and county of Sacramento" None
of the bonds or coupons set out in the petit
tons in these proceedings are IN accordance
with this provision.
At o'clock the Court took recess until 8
o'clock yesterday. az which time the counsel
for petitioners present their side of the case.
Counsel for petitioners contendsd that the
demurrer is a general one, and should be
overruled; that The law Of 1868 never in
tended that the city of Sacramento should be
exempt from mesne or final process that il
that were the case the taxes could be paid in
the treasury. and there would be no means to
get it out; that petitioner is not obliged to
apply for writ of mandate to collect taxes
and apportion 90 per cent. for sinking and
interest fund, there being S100. 000 in the
fund that the Legislature has no right TO
say that creditors shall not sue, the intention
being the common law rule, and nothing
more that there is no misjoinder Of parties,
and If there was, the demurrers do not prop
erly show it; that the petition shows that
each party to these suits has some duty TO
perform. Counsel discussed the Act of 1853.
and claimed vested right under it to the
claims, giving history Of the bonded in
debtedness They further claim that the
city of Sacramento ct present succeeded to
all the rights and obligations of the city and
county Of Sacramento that the Legislature
has not changed thu law. It was never in
tended that the suits could not be maintained,
as it would violate vested rights thst if that
rule should obtain, counsel would rather be
Treasurer Of Sacramento than owner of the
Bank of England.
S. G. benson, for petitioners, presented
few suggestions, and asked the privilege of
filing brief. He directed his argument
sgainst the proposition of the sinking and
interest fund being trust fund. as clsimed
by counsel for defendant, and contended that
this is not such fund, as is contemplated
by the laws of trust.
City Attorney Anderson then concluded
the argument for the defendants, and re-
viewed the points made bY the petitioners.
He read numerous authorities to sustain the
propositions made In the opening Of the
case.
The argument lasted during the entire
forenoon session of the Court At is close
the Court gave the parties twenty days to
prepare and file briefs, the case TO be sub
mitted thereupon.
SUPERIOR JUDGE APPOINTED. y yesterday
j. w. Armstrong received commission as
Superior Judge CT Sacramento county, vice
Robert c. Clark, deceased. he qualified
for the position, and will assume the duties
of the Office this morning. Judge Armstrong
received the Endorsement by petition and by
letter of majority of the members of the
Sacramento bar, and committee of leading
business men voluntarily presented to the
Governor a petition largely signed by prom
inent business men, requesting his appoint
ment. He was the choice of the delegates
from this and many delegates from other
counties in the San Joss Convention for
nomination TO the Supreme bench. Judge
Armstrong was chosen by the Governor from
among five legal gentlemen of uuquestione1
ability, whose names were presented for the
appointment.
CHARGES TO BE INvEsTIGATED.-Writt
charges were presented yesterday before the
Police Commissioners against police officer J.
J. Carroll, of oppression and official miscon.
duct. The charges were made by r. E. Mar
tin Of Calaveras county and J. Hsrkins of
San Francisco. The men are thetwo arrested
for the burglary of Eberhardt's gun store, as
detailed in the RECORD UNION. There ap-
pears to havo been no grounds for holding the
men. aud they were released by order of the
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