The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-02-15

|ity of the bonds, is explicitly made to
rest upon the authority of Beals VS..
Amador County, supra, but, as has
been said, and as was pointed out by
the learned author of the opinion In
Beals VS.. Amador County, the case is
not authority for such doctrine.
The question whether or not there
was money in the treasury to pay the
bonds at the time they became due,
and that thus the holder of a matured
bond who had failed to present it at
maturity could not recover interest,
does not here arise. If such be the
facts, they might constitute a defense
to the present action, but they cannot
be considered upon demurrer. The
Treasurer is specially charged with the
duty of paying the interest. If he
can make a valid and sufficient show
ing why that interest should not be
paid, he may make it in his return,
but under the facts here pleaded, as it
is made the explicit duty of the Treas
urer to pay the interest upon these
bonds as it becomes due, mandamus
may be employed to compel him to
perform that duty.
rer was improperly sustained The
judgment is reversed and the cause re-
manded. with directions to the trial
court to overrule the demurrer to the
petition. with leave to the Treasurer
to make his answer or return thereto.
HENSHAW, j.
We concur: Garoutte, j.; Temple, j.;
Harrison, J.
DISSENTING OPINION.
I dissent, and am of the opinion that
the judgment of the court below should
be affirmed
The rights which the appellant has
against the city are not those of a gen.
eral creditor. He could not recover a
judgment against the city, upon his
bonds, for single dollar for the bonds
We're issued and accepted by the bond
holders under statute which provides
that the city shall not be sued in any
action whatsoever" The complaint
does not show the form of the bonds;
but, assuming that they are on their
face similar to ordinary bonds issued
by corporations, they do not in them
selves constitute complete and indie
pendent contracts. They are only
parts of the contract which was made
between the bondholders and the city
by the passage of the Act of April "a
1898, and the issuance and acceptance
Of the bonds according to the provis-
ions of that Act-a contract, as was said
in Meyer VS.. Brown 60 Cal, $50 las
solemn and binding as it would
have been if made between private per-
sons" By that contract they waived
all rights as general creditors under
their old floating demands against the
city which We're of uncertain value and
agreed to rely upon a special trust fund
to consist of 90 per cent. of the revenue
derived by the city from certain emu
merated sources, which substantially
included all sources of revenue, and
waived all right to sue the city. The
contract was undoubtedly a good one
for the bondholders, and the court has
construed it very literally in their ia
vor. For instance, it was held in Bates
VS.. Porter, IA Cal, 224, by a majority
of the court, that SO per cent of the
revenue derived" from water rents
meant 30 per cent. of the gross receipts
of the city's Water Works But their
legal remedies are confined to pro-
ceedings to compel the officers of the
upon them by the said Act of 1853 and
other supplementary Acts not impor-
tant here
The question, then, is not whether,
under general law, coupon bonds bear
interest after the exhaustion of the
coupons for which judgment may be
| recovered, but whether under the said
statutes the payment of interest on the
the coupons is IAN act which the law
specially enjoins" upon the City Treas
urer las a duty resulting from" his Of
flee, and which he may be compelled to
perform by mandamus. Section 40
provides that the Treasurer shall pay
"the interest" on said bonds las pro-
vided in this Act" and Section 81, in
which authority for the issuance of
the bonds is given, provides that the
interest shall be payable annually at
the office of the Treasurer; but the
latter section also provides that "cou-
pons for the interest shall be attached
to each bond" and the whole tenor of
the Act seems to me to be clearly to the
effect that it is not the duty of the
Treasurer, nor has he the power, to
pay any interest other than that rep
resented by the coupons. l think that
the correct construction of the Act is
expressed in the opinion of Fox, j., in
Bates VS.. Gerber, so Cal, 5J3 as fol-
lows: 1T did not provide for either
principal or interest bearing interest
after maturity, and provided no fund
to meet such added liability" The
Treasurer is nowhere required, in the
event Of the bonds not being satisfied
at maturity, to pay interest by way of
damages. This is the view that must
have been entertained in Davis VS.. Por-
ter, 66 Cal, COS, where it was held that
it was not the duty of the Treasurer
TO pay interest on overdue coupons; and
it is conceded that, under the general
authorities, interest on matured and
unpaid coupons stands in the same cat
| egory with interest on the principal of
coupon bond after the exhaustion of
the coupons. Moreover, in that case
the view of the court must have been
the same as that hereinabove stated,
| for in the opinion of the court it is ex-
| pressly said: THE court cannot
therefore, issue any to the defendant to
pay beyond the annual interest evil
denced by the coupons involved in this
proceeding and cites Sober VS.. Super
| pervisors, % Cal, 40; and those cases
are, l think, clearly in accordance with
the views above expressed. In the
Beals case interest was claimed upon
an overdue debt Of the County Of Anna
/ dor; but the amount was to be paid
out of special fund as provided by an