The record-union., 1898-10-29

begin to run. Not until that period
would the petitioner have any right
of action or proceeding against the
Treasurer. The contrary view would
place it in the power of municipality
in many cases to avoid all payment
of its debts, if, by concert of action,
each officer should omit to perform his
duty. The time consumed in compell-
ing each to perform such duty might
be made to consume all of the period
of the statute before the funds would
reach the treasury. We do not think
the Legislature intended any such re-
sult''
Freehill VS.. Chamberlain, 90 Cal, 603.
The funding statute of April "A, 1893,
was repealed by the charter of the
city of Sacramento, passed on April
%, 1868. This latter statute attempted
to aalend the statute of 1858 by giving
to the Board of Trustees discretion as
to the amount of taxes to be levied for
municipal purposes and by also pro-
viding that but 80 per cent. of the net
receipts of the Water Works should
be appropriated to the interest and
sinking fund
In 1887 the legality of the attempted
amendment of the statute of 1898, so
far as the same related to the Water
Works fund, was decided by the Su-
preme Court of this State in the case
of Bates VS.. Porter, Treasurer of the
city of Sacramento, reported in II
Cal, at page 224, and it was there de-
termined by a divided court that %
per cent. of the gross receipts of the
Water Works must be appropriated to
the interest and sinking fund, and
also that neither the Legislature nor
the city of Sacramento had any right
or authority to change any of the
provisions of the Act of 1888, under
which the bonds were issued.
At the time the present case was
begun there was pending for decision
in the Supreme Court of this State the
case of Kendall VS.. Porter, Treasurer
of the city of Sacramento, the OBJ
ject of which was to determine the
question as to whether the Sacramento
City bonds bore interest after their
maturity, it being claimed by the city
that the coupons attached to the bonds
represented the entire amount of in
terest which could accrue thereon, and
also that the Act of 1858 made it the
duty of the Treasurer to pay from
the interest and sinking fund only the
amount of money represented by bonds
and coupons, and that no other
amount whatsoever could be PAID
therefrom. The Kendall case was de-
cided by the Supreme Court in bank
on February 18th of this year, and 1t
was there determined, by majority
of the court, that the Sacramento city
bonds bear interest after maturity the
same as before maturity.
This court is bound to accept as law
the propositions decided by the Su-
preme Court in the cases referred TO,
and to follow these decisions so far as
the points decided are analogous to
questions presented in this case.
1t was conceded at the trial of this
action that there had been for many
years in the interest and sinking fund
a sum of money equal to the amount
of the petitioners demand in this case,
and it is claimed by respondent that
this admission operates to bar any re-
covery by petitioner in this action and
to make good the defense of the statute
of limitations Whether this conten-
ton is well founded depends upon what
the duty of the Treasurer of the city OF
Sacramento is, as to moneys received
in the interest and sinking fund. If
these moneys are to be paid out for
bonds and interest in the order of their
maturity, then it results that not only
must money be in the treasury, but
that it must be applicable to the pay
ment of petitioners demand. 1t was
proved at the trial of this case, and
admitted by all parties, that at the
g m a
on February L. 1888, there was about
one million dollars of other indebted
ness of the same character as plaintiffs,
all of which was older in point of ma
turity and entitled to prior payment,
provided it was the duty of the Treas
urer to pay the demands in the ordel
of their maturity. 1t was also proved
at the trial that the total receipts in
the interest and sinking fund subse-
quent to February l, 1888, added to the
balance of that fund on that date. did
not equal the amount of the indebted
ness maturing prior to plaintiffs de-
mand until about January /, 1895. In
other words the total receipts in the
interest and sinking fund up to Janu-
airy l, 1899. We're not more than suffi-
cient to pay the demands against that
fund maturing prior to petitioners de-
mands. These claims We're paid by the
Treasurer as moneys came into his pos
session in the order of their maturity,
and it was not until about January
1895. that the Treasurer did make any
payments on demands maturing subse-
quent to January /, 1888. If these de-
mands, being prior in date of maturity,
We're entitled to priority of payment,
then there was no money in the treas
ury applicable to petitioners demand
until subsequent to January /, 1895,
and if this is a fact the statute Of linn
itations against petitioners demand
would not. under the decisions of the
Supreme Court before quoted, begin to
run until that date and would not con-
stitute a defense TO this action until
four years thereafter.
At the trial of this action it was ad-
mitted as fact that it is, and had been
for many years, the practice of the city
of Sacramento to pay moneys from the
interest and sinking fund to the ma
tured demands in the order of their
maturity. paying or reserving sufficient
money to pay, the demands accruing
in a given year before it would pay
anything on the demands of any subse-
quent year.
The question AS to the order in which
demands against the interest and sink
ing fund should be paid, was submitted
for decision to this court in the case
of Meyer VS.. Porter, Treasurer of the
city of Sacramento, No. 1871. In this
case Daniel Meyer brought an action
against the Treasurer to compel pay
ment of certain interest coupons owned