Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-02-02
THE RAILROAD BOND INTEREST CASE.

the same plaintiff against w. A. Jauuary,
State Treasurer, upon an application for
writ of mandate to compel the payment of
the thirty.ninth installment Of interest due
upon bonds issued under the Act of 1864,
came up for hearing before Hon. ]. ". Arm
strong, Superior Judge. Judge Armstrong
announced that it would have been more
satisfactory, owing to the important nature
of the case, to have the Court sit in bank,
but Judge Mcfarland was yet too i'll to sit
upon the bench. If counsel desired, the case
could be continued, so that both Judges
might pass upon the cases. Counsel on both
sides-S. w. Ssnderson snd S. c. benson
for the petitioners, snd J. II. Mckune and
W. w. Foote for defense-annouLced them.
selves satisfied to proceed, with Judge Arm
strong to preside.
The first step taken was formal order of
the Court striking from the files of the Court
the demurrer interposed, there being no such
procedure known to the practice under the
application for writ of mandate but with
the privilege to defendants to present an an
swer Counsel for defense took an exception
to the ruling of the Court. An answer in
each case was then fled. Then came a mo.
ton of defense to quash the alternate writ Of
mandate, alleging in substance the same
GROUNDS OHeFSu upon Jue demurrer. r GLOW
ing this were motions of Petitioner in each
case for judgment, and the issuance of
the writ prayed for, based upon the plead
ings alone-thst Is, the petition and answer.
as they appeared before the Court.
At this iurcture there was some discussion
as to the proper manner of disposing of the re-
spective motions. The Court suggested to
counsel upon both sides TO present the csse
fully and fairly and that he would
/ not tarbpioal
questions to affect his judgment il the case,
but proposed to hear and determine the
whole subject matter, upon the merits, both
upon legal points and questions of fact
At this point Judge benson preceded to
open the argument for petitioners, and after
stating the several grounds of the motion for
judgment upon the plesdiues, read each
several clause in the answer, and commented
upon the same ss he proceeded. 1t was
claimed that nearly every allegation in the
answer simply raised questions of law, which
are disclosed by the provisions Of the Act of
1864, and that the other averments which
were intended to present issues Of fact did
not in fact do SO. The answer denied that
the petitioner was the owner Of the coupon
alleged in the complaint, but did not deny
that it was the holder. This was claimed did
not amount to a denial. The answer sets up
various grounds, and ALLEGES in some of the
terms of the Act Of 1861 that the railroad
company had failed to convey q certain half
section Of land which the Act described, and
therefore had broken the contract. To this
counsel argued there could be no advantage
taken by defence, as il appeared by the Act
that the General Government had already
granted a vested right to another, ren-
dering impossible to comply with the
provision, which was st the most Only Condi-
tional. Certainly this could cot affect the
question Of the issuance OF the boGds ami
coupons which were payable to bearer. An
other argument, that the rsilIoad company
have n0J conveyed certain classes of State
messengers prisoners, insane persons, etc.
pursuant to the Act Counsel urged that. if
there had been any fsiure in this, that by the
terms Of the contract made and executed, the
State, upon suit, could recover back the
amounts, and that this could in 10 wise affect
she bonds or coupons or their payment. That
upon the question Of the constitutonality of
the Act of 1864, bstore a single bond or ecu.
pom had been issued upon the relation of the
Attorney General against Pscheco, State
Treasurer, reported IL the Z7th Cal, page
10, the validity of the Act had been fully
de-eru ined ana the Issuance declared regular
That there is q question which suit should
be maintained, whether it is the duty of the
Treasurer to pay the coupons, which are reg
ular, audited claims. upon presentation, or
whether, under the new Constitution. which
money shall be paid out of the treasury
without the warrant of the Controller. 1t is
certain there is debt, and the State owes it,
and all petitioner wants is its money. Ger
tainly it Is within the duty of the Treasurer
to pay without warrant, or it is the duty of
the Controller, if the provisions Of the Con
stitution are construed as a mere regulation
and no part of the original contract I'M
der the Act of 1864, to issue his warrant
upon the Treasurer for the amount. There
are many authorities cited In support Of the
several propositions, and to the point, that
there is nothing in the answer which puts in
issue any material Issue which can affect the
substantial rights Cf petitioner. Thst by
Section 473 subdivision Il, of the Political
Code, it is made the duty Of the Controller
to draw his warrant for The payment OF these
coupons That the Act Of 1854 is a contract
inviolable, and that any breach Of the con-
tract by the railroad company il provided
with penalty, but cannot affect the issuance
or payment either of the bonds or coupons.
That the answer fails ~ deny any Of the ma.
teria allegations in such form as TO put the
same in issue, ard that petitioner IS entitled
- judgment on the pleadiues.
at the close # Judge Deu=5u'= arEuU ent,
which occupied over two hours. W. ". Foote
presented the line Of defense. He announced
that he would quote freely from bsief in a
case now pending in one Of the Superior
Courts at San Francisco at the suit Of At.
tOruey.Gereral against the raiir,nd company
to recover back 81 900, eco interes. paid upon
the same Clas7 OF coupons That Zone Of the
bonds or coupons had ever been issued in ac-
cordauce VII ne Act Of 1861, and that the
case cited j. y Cal, by counsel for petit
TONERS, does % pass upon the questions in
volyed in thu c.se. That the petition is de-
fective, and that the writ should not Issue.
That the railroad company has violated the
80 z.rft la. ~, - hoE H. Ill
are bound to take notice of the conditions Of
the Act and are bound thereby. That thsre
Is % provision Of The law authorizing or erc-
powerirg the State Treasurer to indCrse the
coupons, and thst this cannot and
docs not give any additional strength
to the coupons that it amounts TO
nothing more than il copy Of The Act Ct
1864 had been Endorsed thereon. That the
aYerments Of the answer are proper, ana DO
raise material Issues, but whether it does or
rot cannot affect the defective petition,
which, if defective, needs no answer. That
the Legislature has the right 10 provide q diff
f-reut means If payment from that set forth
in the Act, and that it is no part of the con-
trsct
Council proceeded at length to argue the
various propositions, and presented RutEOri-
ties b support thereof.
A. > O'Clock the Court took recess until
this morning at 10 o'clock, wLeu judge Nc
kuue will oisr 9dditionsl argument for the
defense. He viii be followed by Judge San.
dersou, who will cl0se the Gaze FIR the petit
toner,
AUCTION SALE.-Beu X Co. viii sell at 10
\. y. to-day, at their rooms. Eighth and
X Streets large lot Of household goods, by
order of D. Walker, who is about to leave
for tie East, including paTlor and bedroom
sets, kitchen furniture, carpets. chairs, BEDS
bedding, Garland range, with everything
complete, etc. The ssle viii be without re-
serve, and in lois to suit. Also, at same
time and place an additional assortment of
uew aud secondhand furniture carpets,
stoves, rauges, etc. Also, 10 boxes laundry
soap, boxes toilet soap, 10 half and w,.ole
boxes new raisins, go packages Mocha coffee,
3 cases japanese tea, l Adams Nestake wire
gauzs oil cooking stove and furniture.
License MATTEgs.-At tie meeting Of the
Board of Supervisors next Monday it is be.
lieved that action will be taken to amend the
present ordinance relative to the licensing Of
saloons and other places where liquor is sold,
the present ordinance having sight weak
ness that attorneys are presumed to have ais
covered. The matter would have been con-
sidered st q recent meeting Of the Beard. hut