The San Francisco call., 1899-12-05

became insolvent and never paid the city
a dollar.
The majority opinion goes on to say:
Conoeding that under the constitution and
laws OF California the bonds and coupons sued
on could only be paid out OF the special fund
provided for by the act under which they were
issued. II the act and bonds be valid Questions
raised md contested In the suit. no presump-
ton can be INDUCED that there are no moneys
IN the fund provided for. On the contrary. II
the act be valid. the presumption is the other
way-that the taxes provided FOR were levied by
the officers charged with the duty OF levying
them. and that the moneys so raised were in
the fund. IL was not necessary that the COM
plalnant should show the levy OF euch taxes
and the existence OF moneys in The special fund
there are no moneys in the fund out OF which
an execution issued upon the judgment can be
satisneo. and this because OF the refusal OF the
proper ofncers 10 levy the taxes. the Federal
courts will issue a writ OF mandarnus in aid OF
its already acquired Jurisdiction. This is quite
distinct from an original proceeding for the is
euance Of a writ OF mandamus which IL is
Wei settled. cannot be maintained In the Fed
eral courts.
Judge Gilbert's dissenting opinion laws
down the proposition that the power TO
refund the city's own Indebtedness was
clearly within the letter and spirit OF
me act. The $4,000 Of the first mortgage
bonds or the water company, while IL
represented the outstanding indebtedness
OF the city. for which the city was LA
pie and for the payment Of which It
might have borrowed money under pro-
ceedings therefor. and the refunding Of
which was within the spirit OF the pro-
visions OF the act. was nevertheless not
evidenced by the cltys bonds and war
rants, and was therefore not within the
letter or the law. To that extent the pro-
posed application Of funds which was to
bonds was Illegal
Judge Gilbert quoted several authorities
on this point and went on to say:
In the case OF Santa Cruz City from
all the transactions eliminating In the
delivery OF the bonds. IL is clear that the
officers of the city acted I'm the utmost
good faith. There was no fraud, misrep-
resentation or concealment. l submit
that the city Is estopped 10 deny fits La
bllity. and that the judgment of the Cir
cult Court should be affirmed"
Judge James q. Mcguire. one of the at
torneys for the city Of Santa Cruz gave
the following general review of the case:
THE suit entitled City OF Santa Cruz VS.
A. II. Waite was proceeding by writ of
error in the United States Circuit Court
OF Appeals 10 review and reverse n tudg-
ment rendered by the United States CIR
cult Court on September 29 1898, against
the city OF Santa Cruz upon certain mu-
nlcipal bonds and involving the validity
OF what is known as the refunding bond
issue OF April is, 1894, amounting 10 $780,
O0O
''The decision rendered to-day holds
that the entire bond issue in question was
portion OF the indebtedness sought TO be
refunded was the indebtedness OF the
City Water Company of Santa Cruz. a
private corporation. ard that the refund
ing act OF March 1. 1883. under which the
bonds were issued. provided only for re-
funding municipal Indebtedness evidenced
by the bonds or warrants Of the city; that