21 Cal. 668 | Cal. | 1863
Cope, J. and Norton, J. concurring.
At the time, and long before the act in question was passed, the City of San Francisco was indebted to one Henry W. Seale in an amount exceeding $58,000. To recover this amount, Seale instituted suit against the city, which was pending when the Consolidation Act took effect. In April, 1857, he recovered judgment in the Superior Court, and in July, 1860, on appeal to the Supreme Court, the judgment was affirmed. This judgment has never been paid, and on the twentieth of October, 1862, it was duly assigned to the relator, who has ever since been its holder and owner. Subsequently, on that day, the relator demanded of the Board of Supervisors of the City and County of San Francisco, in a regular and public session of the Board, to make provision for the indebtedness due on the judgment, in accordance with the requirements of the fourth section of the Consolidation Act. The Board neglected and refused to make any provision on the subject; and the present application is for a mandamus to compel that body to obey the law in this respect. At the time of the demand there was in the treasury of the city and county, of the revenue of the fiscal year ending in June, 1862, a large amount of money, more than sufficient to pay the indebtedness upon the judgment, unspent and unappropriated.
1. The first position is answered by the language of the act, which is clear and unmistakable. The corporation—the City of San Francisco—is not destroyed, but continued. Its name only is changed, and the change in this respect did not require any alteration of the pleadings, nor any suggestion upon the record. If, pending a suit against an individual, the Legislature should change Ms name, the fact would not abate the suit, nor call for any special action on the part of the adverse party, or of the Court. Where any change is suggested, the vital question is not one of names, but of persons—is the same mdividual, whether natural or artificial, in existence ? If tMs can be answered in the affirmative, the case is not abated, but proceeds to its final disposition.
2. The provision of the fourth section is not a mere legislative declaration of good faith toward the public creditors. It is not a mere pledge that, at some future period, provision shall be made by the Legislature for the payment of the previous indebtedness of the city. The language is that of command from a superior to an inferior body. The act declares that the liabilities of the city shall survive and continue ; it vests all the public property, revenue, and moneys of the city in the city and county; it places the government of the city and county in the hands of the Supervisors; and it declares that provision shall be made for the payment of the debts of the city, and designates the source from which the pay
The construction for which the respondents contend would convict the Legislature of intending to do manifest injustice. Their theory is that the Legislature has taken from the original corporation all its rights and property, and vested them in a new and different corporation, and thus deprived the creditors of all means of enforcing payment of their debts, and in return has simply given them the assurance that some future Legislature, the action of which it could not control, would provide for their case and render them justice. It would require very clear language to induce the Court to attribute any such purpose to the Legislature. A provision adopted with that view would hardly be characterized as a “ declaration of good faith.” We do not think that the Legislature designed any such purpose. We do not think that it ever intended by the act in question to postpone indefinitely the payment of the existing liabilities of the city, and to mock the creditors with a promise that they should ultimately be provided for by some uncertain action of some future representatives of the people.
3. Mandamus is the appropriate remedy to enforce obedience on the part of the Supervisors to the legislative command. In issuing it the Court does not assume the province of controlling their discretion, where that exists. But here the Supervisors have no discretion, except between two courses of procedure. They must provide for the payment of the just debt of the relator, established by the highest record evidence known to the law. They must appropriate the money from the revenues of the city and county already in the treasury, or they must raise the money by taxation. Their authority is ample, and their duty plain. And it would seem that no direction from a Court ought to be considered necessary to induce the performance of so manifest a duty with reference to
The ninety-fifth section of the Consolidation Act does not apply to judgments recovered upon the preexisting indebtedness of the city. Such judgments can acquire no additional validity by being audited, nor is provision the less to be made for their payment because of the restrictions of that section and of other clauses of the act. However broad the terms of the section in question, or of other clauses, they must be read in connection with the fourth section, and receive such a construction that the provisions of all may stand, and right and justice be done.
It is of no consequence that the mode in which the provision shall be made—the machinery for effecting the payment—is not specially pointed out by the act. The legislative command is to make provision for the payment from certain sources. The duty carries with it the means. In imposing the duty upon the Supervisors, the Legislature authorized them, without further designation, to take all the ordinary measures essential to its complete performance. They can appropriate from the revenues; they can levy a tax; and the adjusting of the details is a mere matter of administration which can be had under the direction of any of the officers of the corporation specially designated for that purpose. (Commonwealth v. Commissioners of Alleghany County, 8 Casey, Penn. 218; Commonwealth v. Pittsburg, 10 Id. 496; Maddox v. Graham et al., 2 Metcalf, Ky. 57.)
It follows that the judgment of the Court below must be reversed, and that Court directed to issue a peremptory mandamus in accordance with the prayer of the petition of the relator; and it is so ordered.
The petition for a rehearing in this case must be denied. The point suggested in it was fully considered when the case was decided. The provisions of the Consolidation Act in regard to the payment of the indebtedness of the city are mandatory and imperative, and the Supervisors have no discretion upon the subject. It is provided, in the first place, that the indebtedness of the city shall continue against the city and county, and in the second place that provision shall be made from the revenues for its payment. There is a general provision giving to the Supervisors the power to provide by regulation for carrying the act into complete effect. The idea that further legislation is contemplated has no foundation to rest on. The act declares in plain words that “ provision shall be made,” and the power to make it is conferred upon the Supervisors, and not reserved to the Legislature. The language is unambiguous, and the intention clear, and the duty enjoined is one which the Supervisors have no right to disregard, and cannot refuse to perform. They are the creatures of the act, and whatever the act requires of them they are bound to do; them duty is simply that of obedience. They must do what the act enjoins, and refrain from doing that which it prohibits, and their duty is no plainer or more imperative in the one case than in the other. The fact that the duty required of them involves the passage of an ordinance makes no difference; the duty itself is no less incumbent upon them because they must perform it in a particular way. It certainly cannot be that a duty positively enjoined may become a matter of discretion by reason of the character of the proceedings necessary to its proper discharge. There is a suggestion to that effect in the case of Lynch v. The Mayor, etc., of the City of New York (25 Wend. 680) but it is entirely unsupported by either principle or authority. The case was an application for a mandamus to compel the payment of the plaintiff’s salary as a Judge, and the decision was put mainly upon the ground that the plaintiff had an adequate remedy by action. In a subsequent case between the same par-
In support of these views, and in further elucidation of the subject generally, we propose to examine a few authorities. In the case of Thomas v. The Commissioners of Alleghany County (32
These cases are but examples of what has been said and done by the Courts generally on this subject, and there is no ground upon which the case at bar can be distinguished from them in respect to the remedy sought. In all of them, and in many more which might be cited, the writ was directed to municipal bodies similar in their organization to the Board of Supervisors, and it has never been doubted that such bodies were subject to the control of the Courts in respect to the duties enjoined upon them by law. The rule to be collected from the cases is, that where a statute gives power to or imposes an obligation on a particular person or body, to do a particular act or duty, and provides no specific legal remedy in case of nonperformance, the Court will, in order to prevent a failure of justice, grant the writ to command the doing of such act or duty. It is obvious that the case before us falls within this rule, for the statute not only gives the power, but expressly imposes the obligation, and the plaintiff has no other remedy, either under the statute or independent of it, by which he can obtain the benefit intended to be seemed to him. The debt belongs to the class referred to in the statute, and the duty of providing for its payment is devolved
The petition is denied.
See note to page 667.