Appeal from the Fourth District.

In the year 1850, the City of San Francisco, being greatly in debt, passed several ordinances for the creation of a “ Sinking Fund Stock,” for the payment, among other purposes, of the then existing city indebtedness; and, to carry out those objects, caused a conveyance of all the real estate of the city to be made to certain “ Commissioners of the Sinking Fund,” who were created by said ordinances. See the history of this plan, Smith v. Morse, (2 Cal. 526, 527.)

This plan failed to relieve the finances of the city, or to extinguish its debts.

In 1851, an attempt was made by some provisions of “ An Act to Reincorporate the City of San Francisco,” passed April 15th, 1851, (Laws 1851, 357) to ensure the funding of the city debt, which had then swelled to about $2,000,000, bearing an interest of three per cent, per month. By article III, section 17 of the act, the Commissioners of the Sinking Fund were directed to convey to the city all the city property in their possession. By article III, section 14, “ the net proceeds of all real estate belonging or that might thereafter belong to the city, were constituted a sinking fund” for “the payment of the existing city indebtedness.” By article III, section 15, the Common Council were authorized to fund the then existing debt of the city.

But this plan was immediately repealed. Another plan was devised, whose purpose was to enable the city creditor to exchange his claims against the city for funded bonds of the city, to be redeemable at the end of twenty years, bearing an interest of ten per cent, per annum, to the payment of the principal and interest of which all the revenue of the city should be primarily pledged, and to entrust the issue of said bonds, and the excluáve and inalienable management of the funds raised for the payment of the interest and principal of the same, to a Board of Funding Commissioners ; and, with a view to these objects, on the first day of May, 1851, the Legislature passed “ 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.” (Laws 1851, 387.)

By sections one, two, three and four, of this act, Commissioners of the Funded Debt were created, who were to issue funded bonds of the city, exchange them for an equal amount of city indebtedness, and receive from the City Treasurer, out of the first moneys collected on the general assessment for each fiscal year, sufficient funds to pay the current interest on the funded debt, and the annual contribution to the sinking fund, provided for the final payment of the bonds. By section ten, the Legislature repealed section seventeen, article III, of the act of 1851, reincorporating the city, which had directed the Commissioners of the Sinking Fund to reconvey to the city the property in them hands; and by section twelve, the Commissioners of the Sinking Fund were directed to convey all the property of the city to the Commissioner’s of the Funded Debt, who were empowered “ to expose to public sale, or to lease the same,” and to apply the proceeds to the payment of the city debt.

By section thirteen of the Funding Act, the Legislature repealed section fifteen, article III, of the act of 1851, reincorporating the city, which authorized the Common Council to fund the city debt, but did not repeal section fourteen, which devoted the lands of the city to the payment of its debts.

The following is the title, preamble, and first section of the Act of 1862, referred to in the opinion. (Laws of 1862, 217.)

“ An Act to authorize the Commissioners of the Funded Debt of the City of San Francisco to compromise and settle certain Claims to Real Fstate, and to convey such Real Fstate, pursuant thereto.

“ Whereas, Pursuant to the provisions of section twelve of an 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 1st, in the year one thousand eight hundred and fifty-one, certain real estate, formerly held by the town or city of San Francisco, was conveyed by the Commissioners of the Sinking Fund, mentioned in the said section of the said act, to the Commissioners of the Funded Debt of the said city of San Francisco ; and, whereas, it is alleged that certain parcels of said real estate have never been sold, leased, dedicated, reserved, or conveyed, by the said Commissioners of the Funded Debt, but are in the actual possession of certain persons, who have purchased the same in good faith, and for valuable considerations, and who, by themselves, their tenants, or the persons through whom they claim and derive possession of the said lands, have been in actual possession of the same, from and including the first day of January, in the year one thousand eight hundred and fifty-five, and who therefore claim to have become entitled to and possessed of all the right, title, claim, interest, and estate, of the said city of San Francisco, of, in, and to, the said lands, by them respectively occupied, as aforesaid, by virtue of the provisions of an act entitled an act concerning the city of San Francisco, and to ratify and confirm certain ordinances of said city, approved March 11th, in the year one thousand eight hundred and fifty-eight, and of the ordinances mentioned in the said last mentioned act, and particularly of the ordinance therein mentioned, commonly called the c Van Hess Ordinance’; and, whereas, it is doubtful whether or not the said claims of the said possessors of the said lands are well founded in fact $nd in law, and also, whether the said claims of the said Commissioners of the Funded Debt have not become barred by the Statutes of Limitation of this State; therefore—

“ The People of the State of California, represented in Senate and Assembly, do enact as follows:

“ Section 1. Upon receiving a petition from any person or persons, claiming that they, by themselves, then* tenants, or the persons through whom they claim or derive possession, have been, from and including the first day of January, in the year one thousand eight hundred and fifty-five, and still are, in the actual possession of any of the lands conveyed to the Commissioners of the Funded Debt of the city of San Francisco, by the Commissioners of the Sinking Fund of said city, according to the provisions of section twelve of an 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 1st, in the year one thousand eight hundred and fifty-one, and that such lands have not been sold, leased, dedicated, reserved, or conveyed, by the said Commissioners of the Funded Debt, to any one, or for any purpose, and that such claimant or claimants were the purchasers of such lands so claimed by them for a valuable consideration, and asking for a grant of such lands under the provisions of this act—the said Commissioners of the Funded Debt shall proceed to take testimony as to the matters alleged in such petition. Full and accurate notes of such testimony shall be made and preserved; all documentary testimony shall be copied in full, and the testimony of witnesses shall be made in wilting, signed by the witnesses, and attested by the Commissioner taking the same. Any one or more of the said Commissioners of the Funded Debt shall be competent to take such testimony, and to administer the requisite oath or affirmation, on taking the same, and in all proceedings under this act, as well as for the purpose of verifying the petition aforesaid. Such petition shall be Verified by the oath or affirmation of the party in whose behalf the same is presented; or, in case it shall appear that he is absent from the State, or from any other cause, is incapable of verifying the same in his own person, the same may be verified by his agent or attorney in the premises, before one of the Commissioners of the Funded Debt, or before any officer authorized to take affidavits to be read in Courts of record. Any person who shall be guilty of willful false swearing in any material matter provided for in this act, shall be adjudged to be guilty of the crime of peijury, and shall suffer the penalty thereof.”

Section two provides that the Commissioners shall determine whether the petitioner is entitled to a grant, and if so, award it, and make publication of the fact for three weeks in a daily newspaper, published in San Francisco.

Section three provides that on proof of such publication, and on payment of the amount of moneys agreed upon, the Commissioners shall convey the lands to the petitioner; but also provides that counter claimants may withdraw the adjudication of a claim into Courts of law, in which case the conveyance is to be withheld until the issue of the litigation, and then delivered to the successful party.

Section four provides for assessing the value of the lands in money, and empowers the Commissioners of the Funded Debt to convey the lands to the petitioner, on the payment of the expenses of the respective proceedings, and of the sum of money agreed upon, which shall be “ at least ten per cent, of the assessed value.”

Section five provides for the issue of the conveyance, its form, its recitals, the effect of the deed, and reiterates the provisions of section four in respect to the payment of the expenses and of the price agreed upon.

Section six reserves the rights of third persons, in ah respects, both in law and equity.

Section seven provides that the act shall be executed within a year from the date of its passage, provided that if the Commissioners are hindered in any proceeding' by any process of law, the time during which they are so hindered shall not be taken to be a part of the year, so far as that proceeding is concerned.

Babcock and Walker, the respondents, presented then1 petition to the Commissioners of the Funded Debt, in conformity with section one of this act of 1862, but the Commissioners refused to entertain it. The respondents then applied to the District Court of the Fourth Judicial District in and for the county of San Francisco, for a peremptory writ of mandamus, to compel the Commissioners to entertain the petition, and carry the proceeding forward to its conclusion. The District Court awarded this mandamus, and the Commissioners appeal.