The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-02-15
terest of his bonds for botn would De
barred by the statute of limitations.
M'FARLAND, J.
DISSENTING OPINION.

Nj FsARLANp, y.
DISSENTING OPINION.
/ dissent
This is a proceeding by mandamus
to enforce payment of interest on GER
tain bonds of the City of Sacramento.
The bonds fell due on the 1st day Of
February, 1883, and on the 18th day of
February, 1895. the holder presented
them to the City Treasurer with de-
mand that he should pay the principal
and interest thereon from maturity.
The Treasurer refused to pay any IN
terest, and refused to pay the primer
pal except upon condition that the
bonds should be SURRENDERED. He took
the position, in other words, that the
bonds ceased TO bear interest at ma
turity, or if they did not cease to bear
interest his duty at all events required
him to pay the principal alone, and TO
insist upon the surrender or the bonds
as condition of payment. In the SUI
perior Court the position of the Treas
urer was upheld-his demuE=ac to the
petition for the writ was sustained, and
the proceeding dismissed.
From that judgment the plaintiff APP
peals, and in support of his appeal,
contends:
First-That the bonds in question
continued to draw interest at the con-
ventional rate after maturity, and,
Second-That it was the duty of the
defendant to pay the bonds with ac-
crued interest out of the funds in his
hands
If the appellant has failed to estab-
lish either of these propositions the
;Y,l e OF
be affirmed.
l think it clear that the appellant has
failed to esta blish the first proposition,
and if SO the second need not be con-
sidered, though it seems equally clear
to my mind that even conceding the
plaintiffs right TO interest, it has been
settled by several decisions of this court
that it is not the legal duty of the
Treasurer to pay the accrued interest
out of the funds in his hands, and con-
sequently that mandamus is not the
proper remedy.
The bonds in question were issued in
pursuance of the Act of April n, 1893,
by which the City and County of Sac
ramento Were brought under CONSOLE
dated government. Statutes of 1858,
p. 267) AT that date there was out
standing against the City of Sacramen-
to a large floating indebtedness ana
the Act provided for funding the whole
of it upon terms which may be said
to have embodied a compromise be-
tween the city and her creditors.
By Section 81 of the Act it was pro-
vded that for the purpose of liquidat-
ing, funding and paying the claims
against the City of Sacramento, the
Treasurer should cause to be prepared
suitable bonds of the city not exceed
ing the sum of one million six hundred
thousand dollars, bearing interest at the
rate of g per cent. per annum from the
LIST day of January, 1859, and payable
at The office of the Treasurer, one
fourth of the whole amount on the LIST
day of February, 1888, one-fourth on
the 1st day of February, 1893, one
fourth on the 1st day of February 1898
and one-fourth on the LIST day of Feb
ruary, 1903. The interest on the bonds
was to be made payable at the office
of the Treasurer on the 1st day of
January Of each year and coupons for
the interest were required to be at
tached to each bond in such manner
that they could be removed without
injury to the bond These bonus
were to be issued in liquidation
of all legal debts of the City of Sacra-
mento unpaid or unprovided for on the
1st day Of January, 1859. 1t was pro-
vided that the claims against the city
should be founded in the order of their
reception in bonds having the shortest
time to run. These We're the main and
indeed all the essential provisions of
the Act as to the refunding of the
| 1oatfng debt of the city and if there
had been no other special provisions
| as to the time and mode of payment of
the bonds and coupons they would have
carried with them the usual obligations
and incidents of such securities. but
there were very special and peculiar
provisions contained in the Act regu-
lating and restricting the rights of the
bondholders as to the time and man
ner of payment. The bonds were not
a general obligation of the city payable
out Of any unappropriated revenue. but
We're to be paid only as provided in the
Act; that is to say, out of the special
sinking and interest fund thereby Gre
ated. Fifty-five per cent. of the city
revenues We're set apart to this fund
and it was to be applied to the pay
A-ANAAe - tiiC tthAAuci iiiteiSSl anu IlldI
| redemption of the bonds. (Section 50. }
1t was made the duty of the Treasurer
to pay the interest as it fell due out of
the interest funds as provided in the
Act. (Section 400 But the city was
not to be sued in any action whatever
nor were any of its lands, buildings
improvements, property, franchises
taxes, revenues, actions, chooses in ac-
ton and effects to be subject to any
attachment, levy or sale, or any pro-
(Cnntin,.ed o., I,iftl, panoa