Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-01-16
present their dernsnds. subsequently this time

present their demands. subsequently this tin
was extended 10 January I, 1867
In April, 1868, the present corporation, Il
city of Sacramento, was chartered under
Act which forbade suits against II upon any o
legation made or entered into prfor to the pas
sge OF such Act AL of the pr rerty, effect
income and revenues (which, on April So lS5
belonged TO she Mayor and Common Council
the city OF Sacramento were vested IN and b
came the property o. the city of Sacramento.
In April. 1864, another Act was passed proyi,
| ing plan for the funding of this indebtedness
whereby new bonds were 20 be issued thereto
| bearing six per cent. per aanur interest, an
| maturing in February, 1903. This Act fixed y
limitation OF time for the presentation of CLAIM
by creditors for fauding; bur provided tbs
| such creditors, may present. the same 10 IN
Board o. Trustees; and said Board shall caus
TO be Issued bonds for all such clsinls rs the
may upon examination, consider legal an
Just. On the 18th of October. 1855. the pet
| TONER presented his bonds to TIE DESCENDANTS
and demanded the issuance to him of bond
under the Funding Act OF 1864, for the amour
OF principal and interest then due thereon.
demurrer TO this petition was interp,ase0, bot a
| II has not been argued and rs all Of the CUES
tions presented therein are raised by the an
swer ci the defendants, the demurrer viii b,
oveIruled. The objections interposed by Coun
sci for defendant upon trial herein, TO the ad
mission of evidence, upon which objections th,
Court reserved its ruling, are also over zuled
The application herein is resisted by defend
ants upon the following grounds:
First-Because the Board of Trustees of the
city OF Sacramento are invested with discretion
to allow or reject claims of this character, and
having exercised such power, this Court cannot
interfere.
second-That petitioners demand here /.
ale, and should be denied for laches. We will
consider these objections in this ORDER
/. The statute of 1854 provides that the Board
of Trustees shall fund such claims as they may
consider legal and inst but this provision does
not confer upon them an arbitrary ana exclu-
siye power of determining the legality and ius-
tipp of claim Tins nrpSpntpi raI
affords the creditor ne opportunity whatever 10
be heard. The discretion with which the
Trustees, as public officers, are thus invested is
a legal discre ton that is TO say. one guided
and restrained by rules of law. The statute
never was intended to confer upon this body a
capricious, arbitrary, or oppressive power
which they might exercise without RESPONSE
bility either TO Courts of justice or to the law
of the land.
In this case there was no dispute as TO the
genuineness of the petitioners bonds, and no
claim that the same had been paid. If, there
fore, the petitioners claim was not barred by
laches or by the statute of limita ions, then de-
fendant should have funded his bonds. If they
have failed 10 perform their official duty in this
particular the Courts can, by mandamus, COM
pei such performance. These views are fully
sustained by the opinion of the Supreme Court
of this State in Woods VS.. Strother, decided July
30 1885.
?. 1t will be observed that in the charter of 1851
creating the city OF Sacramento, and in the Acts
of 1883 and 1854 under the authority of which
the petitioners bonds were executed, there was
no inhibition upon the creditors right to sue the
corporation; but, on the contrary, the charter
expressly authorized such suits 1t viii also be
observed that the property, franchises and rev.
enues OF the municipality. the city of Sacra-
mento, which issued these bonds, were, by the
provisions of the subsequent Acts incorporating
the successor of said city, transferred TO and be
came the property OF such succe ssor.
Under the inhibitions contained in the Acts
of 1855 and 1863 the holder of claims against the
old municipality who had funded such claims
under the conditions OF the Act of 1858, cannot
sue the present municipality but am at q loss
TO understand why the creditors holding bonds
issued under the Acts of 1853 and 1851, who have
not funded such bonds cannot sue thereon.
The legislation above referred to could only
constitutionally apply to such Indebtedness
against the municipality as accrued after its
To deny to holders of bonds under the
Acts of 1858 and 1854 the right to enforce them
wonld amount to an attempted reputation
thereof, a course which the law would not
sanction. Furthermore, such legislation would
be unconstitutional, in that it would impair
vested rights and destroy the obligation of the
contract
Upon principle it is not apparent how mu-
nicipal corporation which succeeds another
which receives all the property, effects and rev
enues OF the former, can, as against the cred
itors of the former. escape liability for Its obi
cations. As understand the case, this munich
pal liability was sustained by the Circuit Court
in the case of Fowle VS.. the City of Sacramento
u Wallace, 12l
While municipal eorporations are but the
creatures OF legislative power and while the
State, in the absence of constitutional restrict
ions, may make and unmake them, or enlarge,
alter or restrain their powers and privileges, il
cannot authorize the performance of an act
which will impair the obligation of a contract
'Ifa municipal corporation becomes indebted
the rights of creditors cannot be impaired by
any subsequent Legislative enactment" il Dillon
on N. C, See. 60; San Francisco VS.. Caravan
~ Cal. 5i2) The circumstance that the city of
Sacramento in one instance unsuccessfully
claimed that the Act of 1855 barred suits upon
demands accruing prior to its passage, does not
eStop the defendants herein from asserting the
of such statute, so far as il
endeavors to ac7omplish such result Nor
would this circumstance operate as an estoppel
upon the defendants from maintaining their
contention, because an estoppel only results
where party invoking it has re led upon the
Act or representation in question, and would be
injured by allowing its truthfulness to be dis
proved.
In this case it does not appear that the petit
toner herein failed to avail himself of the priv
ileges conferred upon him by the Acts in cues
ton, or neglected to institute the present pro-
ceedings IN consequence of the pea of the city
of Sacramento, in the case referred to. Nothing
that therein occurred can fairly be urged
either in eXtenuatlon OF. or as an excuse for the
delay of petitioner in asserting his rights
For these reasons | am of opinion that the
Acts of 1855 and 1868 did not impair affect the
petitioners right to sue upon or enforce his
claim for the Indebtedness represented by his
bonds and coupons that the statute of limita-
tons has been properly Pleaded herein, mas
much as the suit is founded upon an alleged
obligation of the defendants to perform an oil
cial duty, to wit: the funding of the petitioners
Indebtedness. And as conclusion, from these
premises. am of opinion that the statute of
limitations has barred the petitioners claim
herein. But if this were not so, it would still
seem that the present application must be de-
MED for laches, upon the ground that the relief
o 9ngt n by 9sa6sd b. might sm
petitioner contends that, inasmuch as the
runding Act of 1864, unlike the legislat on
which preceded it, prescribed no limitation
of the time upon the creditors right or privilege
TO avail himself of the benefits thereof. that,
therefore, the statute of limitations could not
and did not run against the creditor in favor of
The city; that, therefore, the creditor could Mt
any time before the year 1888 the date fixed for
the maturity of the bonds issued under the
Funding Act, elect 10 accept the Ceneat of such
Act.
When the law authorizes the performance of
an act. or confers a remedy Ter thu enforcement
OF such performance and pre- eiibes 10 iireila-
ton OF the time there for. such act must be per
formed, or such remedy sought within a rea-
sonab'e time; and when the Legislature passed
the Al in question it contemplated that the
option which it afforded the creditors of the city
should be exercised by them within at least a
then there is no limitation of the time whatever
upon the creditor right to compel the officers
of the city to fund his bonds.
Mandamus Is the principal remedy by which
to the performance of the obligation imposed
upon them by their charter in favor of their
creditors.
The petitioner here was entitled to fund his
bonds as early as May, 1861; and, as the law
presumes in favor of the performance of official
duty, we must assume that the application now
presented could have been successfully made
over % yeats ago. After psriod of inaetion,
continued for nearly Is years after the ma
turity of his bonds, and nearly "A years
alter the passage of the Eulding Act can
the petitioner ROW make or enforce his elee-
ton? am of opinion that he cannot and that
in consequence of his laches the petitioners
claim must fall. 1t is claimed however, by
petitioner that inasmuch as the city funded two
bonds issued under the Acts in question as late
as the year 1881, the defendants are now es-
topped from successfully eontesting the petit
toners app ication. To this ciaim it may be
answered that the petitioner herein waited
nearly eight years longer than the bondholders
10 whom he refers. Furthermore, the circum-
stance that The officers of the city in some in
stances funded the bonds thus presented to
them, constitutes no estoppei upon the defend
ants from ayailing themselves of the defenses
herein proposed. The Act in question presents
none of the elements of au estoppel further
more, there Is 10 evidence in this case that any
Board of Trustees OF the city ever construed the
Act OF 1864 as requiring them to fund all claims
presented prior to 1908. If such construction
was adopted it would, IN view of the opinion
herein expressed, be erroneous and not in any
manner binding upon this Court
For all ofthese reasons l am of opinion that
the petitioners application herein for writ OF