The record-union., 1891-02-09
c. H. GILMAN,
Red House, Sacramento.

officer having the possession or control
thereof, shall be a felony, and shall be
prosecuted and punished as prescribed by
law" In this section the phrase ''mak-
Ing OF profit out of county, city, town,
or other public money!" is an indie
pendent clause and, ofitself, constitutes a
felony, and is not dependent upon the
subsequent words mot authorized by
law" so that these latter words need not
be here construed.
We think, also, that the section of the
charter under review is inconsistent with
both the spirit and the letter of the GEN
eral laws OF the State relating to public
moneys. For instance, Section 426 of the
Penal Code defines public moneys as
including all moneys belonging to "any
city, county, town or district" and Sec
ton 44 provides that leach officer of this
state, or OF any county city, town, or
district of this State, and every other per-
son charged with the receipt, safe-keep-
ing, transfer, or disbursement of public
moneys who' commits certain acts with
respect to such public moneys as are
enumerated in ten subdivisions of the
section, sis punishable by imprisonment
In the State prison for not less than one
nor more than ten years, and is disquali-
he'd from holding any office in this State. -
This is certainly general law within
any reasonable definition of that term
that could be suggested, and the forty
fourth section Of the charter is clearly
that said section 424 (P. CO. is qualified,
in most part at least, by the words s'with-
out authority of law" which occur in the
first subdivision. But waving here the
meaning of the word ''law' as applied to
a charter adopted by only part of the
law-making power. it is sufficient to say
that Section 224 enumerates great MANY
things which one having custody of pub
nc moneys may do which are not
authorized by law' in any sense. and
which are declared to be crimes punisha-
bic by Imprisonment in the State prison,
and by debarment from office. But if a
private corporation should commit any of
these crimes how could it be made to
suffer the penalty prescribed? 1t has
neither body to be imprisoned, nor a
right to hold Office of which it could be
deprived. 1t seems clear, therefore, that
scheme which places public MONEYS in
the possession and control of a private
corporation is entirely inconsistent with
the provisions of the section of the code
above quoted.
Without referring with further detail to
other provisions of the Constitution and
the laws, our conclusion is that the parts
OF Section A of the charter of the CITY
above referred to, and the said contract
attempted to be made under it, are incon-
Slstent with both the Constitution and the
general laws of the State; that the com
plant IN this action states facts sufficient
TO constitute a cause of action, and that the
court below erred in sustaining the de-
murrer.
(The point is limited at, though not
pressed in the briefs, that taxpayer can
not maintain this action. We suppose
that counsel wish the case decided on its
merits, and not upon an issue in the ma
ture OF one raised by dilatory plea, for
their arguments go almost entirely to the
point OF the constitutionality and validity
OF the part of the charter assailed. We
think, however, that in this case, where it
is proposed to take all the public moneys
OF the municipality out of the hands of
their legal custodian, and place them in
the possession and control of a private
corporation, taxpayer has sufficient in
terest in the subject matter to prevent, by
suit, the consummation of the illegal act
The Judgment is reversed, with direc-
demurrer to the complaint.
MCFARLAND, J.
We concur:
De HAVEN, j.,
SHARPsTEIN, j.
Filled February 2, 1871
Appeal from the Superior Court of Los
Angeles County-H X. s. O'Melyeny.
Judge.
For appellant Edwin Baxter.
For respondent, VIII d. Gould and Jas.
DEPARTMENT TWO.
JOSEPH HINKELL.
Respondent.
"a a n 90 ~,