The herald., 1896-04-14

able either at the office of the city treas
urer or at a bank in San Francisco, New
York, Boston or Chicago.
1t is contended that this act, also, is
invalid, as special legislation; but what
we have said as to the act Of 1883 on
this question applies equally to this
act 1t also claimed that the legis-
lature could not authorize debt paya-
Die in twenty years to be refunded in
to debt payable in forty years; but
we 1ail to discover any force in this con-
tentlon, ana no reason is suggested or
authority referred to supporting it.
1t is also contended that the provi-
sion authorizing payment of the bonds
at place other than the city treasury,
and especially out of the state, is in con-
troVent1on of sections 13 and 16 of article
III of the constitution, and therefore in
valid. This provision, it is true, is sew
cradle, and its invalidity would not af-
rect the rest of the act. But as the bonds
mere in question are made payable at
the Chemical National bank in New
YORK city, and as the ordinance author
izing them provides that they shall be so
payable, 1t is necessary to examine that
objection.
The sections of the constitution re-
ferred to were construed in Yarnell VS..
Los Angeles (S7 Cal, 603), and it was
there held that the provisions in the
charter of that city authorizing the
council to appoint bank in that city
as a depository of the public funds was
O. violation of those sections and wholly
invalid. We are unable to distinguish
that case from the present one, and we
think the reasoning there employed ap-
plies with at least equal force to this
case. If the principal and interest Of
these bonds is to be paid at bank in the
city OF New York, that thing can be ac
c0mplished in only one of two ways:
Either the city treasurer must go in per-
son to New York, carrying the money
with him, and there pay it out, or he
must remit the money by express, draft
or some other mode to that bank and au-
thorize that bank to make the payment
There is certainly no law which author
ICES the city treasurer to go to New
York Tin the present case semi annual
ly), and take with him the public mon
eys; and in the absence of such law, he
certainly has no such power. Even it 1t
be conceded (Which is not clear) that the
legislature is competent to authorize an
officer to perform any part of his du-
ties without the state, it has not at
tempted to confer any such authority
In this instance; and there is, therefore,
no other alternative than to remit the
money to the bank in New York, and
make that bank the agent of the city to
pay the bonds and coupons. But this is
pieclseiy WHaI Is lofDluuel Dy the con-
Stitution, ana is, as we regard it, a
graver infraction of it's provisions than
that considered in the Yarnell case. We
are therefore of opinion that the bonds
in question, and the ordinance authoriz-
ing them, are clearly invalid, and that
the defendant cannot be required to sign
them.
This conclusion renders 1t unneces-
sary to consider the effect of the amend
.xa N~A A.
section l of the act of 1893. The ques-
tions arising under that act are import
ant and have not been adequately pre-
sented by counsel; and we therefore
leave them for consideration in some
case i'll which they are properly in
volved.
The demurrer to the petition is, for the
reasons suggested, sustained. and the
writ dismissed. VAN FLEET, J.
We concur: Mcfarland, j.; Garoutte,
j.; Temple. j.. Henshaw, J.
Justice Harrison also flies the fol-
lowing concurring opinion:
/ concur in the judgment, and also in
that portion of the opinion of Mr.. JUS
tice Van Fleet. in which he discusses
the effect of the provision in the ordi-
nance making the interest upon the
bonds payable out of the state.
l am of the opinion, however. that the
recitals in the ordinance of the bonds
which are to be refunded sufficiently
show that a portion thereof was is
sued prior to the year 1880 and other
portions subsequent to that year. 1t
is unnecessary, therefore, to determine
whether Sec. 4445 of the political code
is still in force, as that section by its
terms authorizes the issue of bonds
for the sole purpose of refunding All
Indebtedness which existed on the first
day of January, 1880, while the bonds
sought to be issued by the proceedings
under consideration are for the purpose
of refunding an indebtedness of which