Reis

Appellant applied to the superior court of the city and county of San Francisco for a writ of mandate to compel respondent, as treasurer of said city and county, to pay to the petitioner certain moneys received by him in his official capacity. A general demurrer to the petition was interposed and sustained, and this appeal is from the judgment thereupon entered, denying the relief sought.

A writ of mandate may be issued by any court, except a justice’s or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. (Code Civ. Proc., sec. 1035.)

The contention of appellant is, that the law specially enjoins upon respondent, as a duty resulting from his office as treasurer, the payment to appellant the moneys demanded of him by it, by reason of certain acts of the legislature, the first of which was approved April 1,1870, and provides, among other things, that “the Home for the Care of the Inebriates of San Francisco shall always be kept open for the reception and care of inebriates, both male and female, of every nationality and sect, free of charge…

—I concur in the judgment of affirmance, upon the ground that mandamus is not the proper remedy, but I dissent from so much of the opinion of Mr. Justice Sharpstein as holds that the act of March 17, 1876 (Stats. 1875-76, p. 325), is repealed by the later act of March 5, 1889 (Stats. 1889, p. 62); and upon this latter point I adopt as a correct statement of the law the opinion of Mr. Commissioner Belcher, prepared for the court upon the former submission of this case. In that opinion it is said: —

But conceding this to be so, mandamus is not the proper remedy, and if defendant, or the city and county of San Francisco, wrongfully withholds money which belongs to the petitioner, his remedy is by action in the ordinary course of law.

Garoutte, J., and Beatty, C. J., concurred.

— I dissent. I concur in the opinion of Mr. Justice De Haven, except as to the remedy.

The appellant is a private corporation in the city and county of San Francisco, under the management of officers entirely disconnected with the municipal government, and asks for a mandate against the treasurer of said city and county, directing to pay to it a sum of money to which it claims a right *150 under the provisions of the act of March 17, 1876. (Stats. 1876, p. 325.) It may be very seriously questioned, whether, under the former constitution, the legislature had the power to compel a donation of the city’s money to a private corporation, or to direct the payment in each month to such corporation of a specific sum of money, irrespective of any benefit or service rendered by it to the city. Without passing upon this question, the act above referred to is, however, obnoxious to the charge of violating section 31 of article IV. of that constitution, within the principles declared in the cases of San Francisco v. Spring Valley W. W., 48 Cal. 493 ; Waterloo Turnpike Road Co. v. Cole, 51 Cal. 381 ; Omni bus R. R. Co. v. Raldwin, 57 Cal. 160 . The acts of April 7, 1870 (Stats. 1869-70, p. 585), prescribing the powers and duties of the officers of the appellant, which it claims…