| Cal. | Jul 1, 1858
Terry, C. J., and Field, J., concurring.
This is a certiorari to review the proceedings of respondent, in making up the assessment-roll for the current year. The appellant followed the provisions of the fourth section of the Act of 1851, (Statutes of 1851, p. 388,) entitled “ An Act to authorize the Funding of the Floating Debt of the City of San Francisco, and to provide for the Payment of the same.” On receiving a requisition from the board of commissioners provided by that act, the assessor added to the assessment-roll of the current year the sum of §145,242, for the payment of interest, and $50,000 for the sinking fund.
The fourth section of the act of 1851 provides: “ The said commissioners, previous to the making out of the general assessment-list, for the said city, in each and every year, shall certify and deliver to the city assessors the amount which shall be necessary to be raised for the payment of the interest of the debt so funded, for the current year, and the said assessors, in completing said assessment-list, shall add to the amount authorized by law-to be raised thereon, for other purposes, the amount so certified for the payment of such interest, and also for the further sum of fifty thousand dollars, in each and every year, for the purpose of a sinking fund, for the redemption of such stock; the first moneys collected upon the whole of such general assessment-list, when so completed, shall be paid by the collector thereof into the city treasury, and by the city treasurer into the hands of said commissioners, as fast as collected; and no payment shall, either directly of indirectly, be made out of the moneys assessed or collected upon the said assessment-list, for any other purpose, until the amount, authorized by this section to be assessed and collected, shall have been actually paid over to said commissioners. The common council of the said city shall not have power to enact any provisions which shall prevent or hinder the immediate collection, in current coin, of the amounts authorized to be raised by this section, or otherwise contravene the provisions of this section; and, if any such provisions are attempted to be enacted, it shall be the duty of the city collector to disregard the same, and to collect, in current coin, the amounts by this section authorized to be assessed and collected. The said commissioners shall have the right, at all times, to inspect the books of the treasurer, assessor, and collectors of said city.”
It is claimed, for respondent, that this act is repealed by the seventy-first and ninety-fifth sections of the Consolidation Act, as it is called. (Acts of 1856, pp. 164,172.)
“ Section seventy-first—The board of supervisors shall have power to levy and collect, in the mode prescribed by law for assessment and collection of taxes, by tax each year, upon all property in said city and county, not exempt from taxation, such amount as they may deem sufficient to provide for the prompt payment of all demands upon the treasury thereof, authorized by this act to be paid out of the same; provided, that such taxation, exclusive of the State and school tax, shall in no case exceed the rate of one hundred and twenty-five cents on each hundred dollars’ valuation upon the assessment-roll. The said board shall also levy and collect, in the same manner, such amount, not exceeding the rate of thirty-five cents on each hundred dollars’ valuation, as aforesaid, as may be determined by the board of education to be necessary for the support of free common schools in said city and county.”
“ Section ninety-fifth—Payment of demands on the treasury of said city and county, duly audited, may be made for the following objects, and none others:
“ First—The fixed salaries of police-captains and officers, chief of police, Police Judge, and clerk of the Police Judge’s Court, may be paid out of moneys in the treasury belonging to the police fund; and, in defect thereof, out of the general fund.
“ Second—The salaries or wages of teachers in the common schools, rents, repairs, building, and furnishing of school-houses, may be paid out of the school fund, as provided by law.
“ Third—The salaries and fees, fixed by law, of all officers and employees of said city and county, including salary of the Judge of the Superior Court of the city of San Francisco, and the legal fees of jurors and witnesses in criminal eases, where the same are made payable out of the county treasury.
“ Fourth—Coupons for interest due upon the San Francisco city stock, duly issued, in pursuance of the act entitled ‘ An Act to authorize the Funding of the Floating Debt of the City of San Francisco, and to provide for the Payment of the same,’ passed May first, one thousand eight hundred and fifty-one.
“ Fifth—Coupons for interest due on the bonds duly issued by the board of fund commissioners, in pursuance of the provisions of the act entitled ‘An Act to provide for Funding the Legal and Equitable Debt of the City of San Francisco, and for Final Redemption of the same,’ passed May seventh, one thousand eight hundred and fifty-five.
“ Sixth—-Coupons for interest due, duly issued by the commissioners for funding the floating debt of the county of San Francisco, in pursuance of the act entitled ‘An Act to Fund the*569 Floating Debt of the County of San Francisco/ passed May fourth, one thousand eight hundred and fifty-two.
“ Seventh—Coupons for interest due upon the bonds known as the ‘ fire bonds/ issued to the amount of two hundred thousand dollars, by the corporate authorities of the city of San Franciso, and bearing date December the first, one thousand eight hundred and fifty-four,” etc.
The fifth section of the act of 1851 provides as follows: “The said commissioners shall receive into their custody all the moneys which shall be levied and collected for the purposes of this act. Out of the same they shall pay the interest of the said stock, at the times and places where the same shall become due and payable, out of such portions of the principal debt as they may be able to obtain for that purpose, as provided in section fourteen of this act; or, in case they shall not be able to obtain portions of such principal debt for that purpose, they shall securely invest such balance, and re-invest the interest and proceeds thereof, until they shall be able so to apply the same to the total extinguishment of such portions of the said debt as herein provided. They shall keep regular books of accounts and minutes of their proceedings, which shall be open at all times to the inspection of the mayor and comptroller of said city; and shall, within one month before the expiration of the fiscal year of the said city, transmit to the common council of the said city a statement, verified by the oath of one or more of said commissioners, showing the amount of moneys received and paid out by them, the expenditures by them made, the amount of stock outstanding, and the amount redeemed within the current year, the condition of the moneys and funds in their hands, and how the same are invested and secured; which statement the common council shall cause to be forthwith published, in a daily newspaper published in said city.”
It will be seen, by reference to the whole of the act of 1851, that it is a law carefully and' cautiously drawn, for the purpose of securing the payment of certain debts against the city of San Francisco. The creditors of the city were invited to surrender their claims, presently due, for bonds payable at distant periods, many of them, perhaps, drawing a larger rate of interest than that provided in this funding bill; and the chief inducement, it may readily be supposed, was the security for the prompt payment of the interest, and for the eventual payment of the principal. Accordingly, in the act by which the change of securities was provided, the particular security offered, and the exact mode and circumstances whereby'it was to be made effectual, were expressed in clear and measured terms, leaving no doubt as to what' was offered, and what was to be given and received. This was advertised and made known to the creditors. They examined these terms, it is to be presumed, with jealous scru
The city of San Francisco, though a municipal corporation, is under the same moral and legal obligation to pay her debts as an individual citizen. She must, and may, as well be made to comply with her contracts, as a private person; and we can not see why her contracts are not as obligatory as to the mode in which she agrees to perform them, as in respect to the time, or place, or fact of performance. We consider the act) a private act, it is true, but none the less binding on that account) as substantially a trust-deed, whereby she agrees, on a valuable consideration, to place in the hands of certain trustees so much of her revenue and property, to be applied by the trustees to the redemption of her obligations, in the mode and according to the terms of her agreement. It is too clear for argument, that, if a private individual owes debts, and has rents or income, and pledges these to pay his debts to his creditors, the property and income must be so appropriated. Why not a corporation ? The law makes no distinction as between these classes of debtors in this respect, and we see no reason why the Courts should.
The act of 1851 being of this character, it was not competent for the Legislature to substantially change its terms, without the sanction of the creditors. And it therefore becomes unnecessary that we should scan the provisions of the act of 1856 to see whether there is any irreconcilable conflict between the latter and the former acts. We are saved the necessity of wandering through the mazes of the complex, though, on the whole, beneficial contrivance, called the Consolidation Bill; for it is immaterial whether, in its material features, it does or does not conflict with the act of 1851, for in either case the act must, in substance, prevail.
It is urged that the city can not be forced to levy taxes to raise the money to be paid to these trustees. We do not admit this pretension to be well founded; nor, if it were, do we see that it would follow that, after having levied them, the local government can dispose of them as it pleases. A man pledging the fruits of his labor to pay his debts, may not be compelled by his credit- or to work; but, if he does work, and earns the money, we suppose it could scarcely be held that he may dispose of the money as he chooses.
The question is not whether, by a legislative alteration of a contract, a party is to be injured seriously, or only slightly. He has a right to the substance of the contract as he has made it. It is his privilege to judge for himself whether it is for his interest for the agreement to be discharged in a particular way stipulated, or in a different mode; and neither the Courts nor the Legislature can change it in any substantial particular. We say in any substantial particular : for it is not necessary to hold,
Judge Story thus announces the constitutional rule : “ The invalidity of a State law, as impairing the obligation of contracts, does not depend upon the extent of the change which the law makes in the contract, and the Supreme Court of Mass., in Blanchard v. Russell, (18 Mass. R., 16,) say: ‘ A law made after the existence of a contract, which alters the terms of it, by rendering it less beneficial to the creditor, or by defeating any of the terms which the parties agreed upon, essentially impairs its obligations; and, for aught we see, is a direct violation of the Constitution of the United States.' ”
The Supreme Court of Georgia, in Winter v. Jones, (10 Georgia Rep., 190,) say: “ A constitutional act of the Legislature is equivalent to a contract, and, when performed, is a contract executed, and whatever rights are thereby created, a subsequent Legislature can not impair. (See, also, to same effect, 15 How. U. S. Rep.; 10 How., 205; New Jersey v. Wilson, 7Cranch, 166; Robinson v. Magee, 9 Cal. R., 81.)
The right of the creditor, under the act of 1851, (fourth section,) is declared too explicitly to be misunderstood—the assessor is to add to the assessment-list the amount of the interest and the $50,000. This is, however, a mere mode of raising these sums. The substantial right is, that this sum shall certainly be raised, and that the first moneys .collected upon the whole general assessment-list are to be paid to the treasurer, and by the treasurer into the hands of the commissioners as soon as collected, and, as if mere words were insufficiently expressive when confined to the prescribing of a duty of prompt payment by the treasurer to the commissioners, it is provided that no money shall be applied to any other purpose out of the whole body of the taxes paid in, until the amount coming to the commissioners be paid. Hot satisfied with this, it is also provided that the commissioners shall receive into their custody the money, etc.; shall pay the interest of the stock at the times and places, etc.; (see § 5,) and, by section seven, the District Court is expressly given jurisdiction to enforce the provisions of the act by summary proceedings—by distringas, attachment, mandamus, and sequestration; and, as if this were not enough, any public officer violating these provisions is held to criminal responsibility.
The only question in this case, therefore, is this: Does the provision in the Consolidation Act which empowers the supervisors to levy a tax for municipal purposes—that tax being sufficient for the payment of the sums provided by the act of 1851 to be paid to the commissioners—does this provision stand in substantial conflict with the fourth section of the act of 1851 ? We think not; for there is a clear and adequate provision for the payment of moneys into the municipal treasury, out of which the commissioners are entitled to the sum to be paid by them in priority of all other claims. The substance of the provisions of the act of 1851 is, that a sufficient sum of money to answer the purposes of that act shall be collected by taxation, and having been collected and paid to the treasurer of the corporation, it stands as a trust fund which the treasurer, as the bailee of this
Therefore, the judgment of the District Court is affirmed.