The record-union., 1891-02-09
Filled Februry 3, 1911

Titled Februry 8, 1871
Appeal from Superior Court, Los An
geles County, Walter Van Dyke, Judge.
For appellant, Chapman Il Hendrick.
For respondents, G. Mcfarland, S. NJ.
White, Graft, Gibbon 1t Creighton.
DEPARTMENT TWO.
JESSE YARNELL, Appellant,
CITY OF Los ANGELES, EFT NO. io'9-o
ELS, Respondents.
This is an action brought by resident,
and taxpayer, against the City of Los
Angeles, NJ. d. johnson, Treasurer of
said city, and the City Bank, a private
corporation. The purpose of the action
is to enioin the said Treasurer from de-
posting the public moneys of the city
with said bank pursuant TO a certain con-
tract between the city and the bank. De-
1endants filed general demurrer-''that
sad complaint c,CeG not state facts suffi-
clent TO constitutes a cause of action" An
answer, and supplemental answer, were
Iled, together with some affidavits, and
the case was submitted. Subsequently,
tie court rendered Judgment by which it
was ordered. adjudgea and decreed, that
tue demurrer to the complaint be
sustained;" that plaintiff was not entitled
to the l1iunction; that the order to show
cause be discharged, and the action dis
missed: and that defendants recover their
costs. flalncif appeals from the judg-
Eent, and it IS clear that the appeal tulns
upon the sufiiciency of the complaint,
ard the correctness OF the decision OF the
coart upon the demurrer. Upon the face
OF the complaint appear The following
facts:
The city Of Los Angeles is municipal
corporation existing under what is gen
orally called ''ireeaoitiers' charter"
formed in pursuance OF the amendment
OF Section s of Article XI. of the State
Stats. of 1887, p. 49, The charter
was approved by the Senate and
Assembly on January 81, 1885,
Section A Of the charter provides.
among other things in brief, that
1t shall be the duty OF the City Clerk, on
a certain day OF January in each year, to
advertise for sealed proposals from banks
OF deposit as TO the terms upon which
they will receive and disburse the pub
lac moneys of said city" The proposals
are TO specify the rate of interest, esti-
mated upon daily balances, which the bank
will allow on the public moneys de-
posted. And ''the bank Offering the
highest rate of interest shall be appointed
the depositaFy of public moneys.''i After
1t is ascertained who is the highest bidder
the council is to enter into a contract with
the Dank, providing that the latter shall
pay "all warrants drawn upon the City
Treasurer SO long as there is city money
in the bank to meet the warrants ON the
various funds. Provision is made for a
bond to be given by the bank Upon
approval of such bond, and the signing
OF such contract. the council shall direct
the City Treasurer to deposit each day,
when such bank is open for transaction
OF buslnes, with the bank thus selected,
all public moneys of said city by him coll
lected or received. For each such deposit
the treasurer shall take the receipt OF the
bank, and from and OTTER the deposit of
such money in said bank the treasurer
and his bondsmen shall no longer be
liable therefor" Under this section of
the charter the city made the kind OF con-
tract provided for therein with the defend
ant, the city Bank" and the defendant
Johnson, Treasurer, was, under such
contract, about to deposit the public
money in said bank when this action was
commenced. The question presented is
whether or not the provisions of said Sec
ton Al OF the charter are constitutional
and valid.
Section 6, of Article XI. of the Consti-
tuition, provides that settles and towns
heretofore or hereafter organized, and all
charters thereof framed or adopted by
authority of this Constitution, shall be
subject to and controlled by general
laws" and the amendment to Section s.
OF Article, XII, under which the Los
Angeles charter was framed, provides
that certain cities may frame charters for
their own government consistent with
and subject to the Constitution and laws
Of this State.' If, therefore, the proyis-
ions above stated, of said Section A of the
charter in question are inconsistent
either with the Constitution, or with any
law which is general" in the sense in
inh II.
quoted, then they are invalid and void.
And we. think that they are inconsistent
with both.
There are several clauses of the Con-
stitution which point to the intent that
public moneys shall not be used by, or
for the benefit of, private persons and
corporations; but one or two of
them only need be invoked here. Sec
ton 13, of Article XI. provides that ''the
Legislature shall not delegate to any
special commission, private corporation,
company, association or individual, any
power to make, control, appropri-
ate, supervise, or IN any acay
interfere aoith any county, city,
town or municipal improvement,
money, property, or effects, whether
held in trust or otherwise, or to levy
taxes or assessments, or perform any
functions whatever" The
only method proposed to avoid this pro-
vision is to say that while the Legislature
may not do the thing prohibited it may
authorize its creatures, municipal cor
porations, to do it. But the thing which
the Legislature is forbidden to do, it can
not delegate to another to do, unless such
power of delegation is given by the Con-
stitution itself. And in other places
there is such power of delegation given.
For instance, in Section IL of Article XI.
the Legislature is forbidden to impose
taxes on municipalities for municipal pur-
poses, but may, by general laws, vest such
power in the municipal authorities; and
in Section IA of the same article, the
any offices in municipalities for the in
spection, ETC., of merchandise, etc.; but,
it is provided, that the municipality
may, when authorized by general law.
appoint such officers" In Section l3.
however, there is no such power of dele
CATION given. Under the construction
;ontended for by respondent, while the
Article ". from authorizing lotteries, it
could give that power to municipalities.
Again, carrying out the same intention,
Section 16, of Article XII, which does not
speak Of the LEGISLATURE. but deals di-
rectly with municipalities themselves.
provides that all moneys of any muni-
,ipal corporation, coming into the hands
If any officer thereof, shall Immediately
pc deposited with the Treasurer, or
'ther legal depositary, to the credit of
such city, town, or other corporation re-
'pectively, for the benefit of the funds to |
which they respectively belong.D The !
word Treasurer" is the one by which |
he custodian of public money is usually !
designated, and he is public officer; and |
he phrase .'other legal depositary' is |
dearly used to designate such public |
,fficer, whether he be called i'm anv nar 1
ocular municipality Treasurer or py |
ome other name. 1t certainly does not |
mean a private individual or corporation. |
And, in the case at bar, the relation be- !
ween the city and the City Bank, under
he contract, is, we think, simply that of |
reditor and debtor-the bank being a |
borrower OF the public money.