The appellant applied to the court below for a writ of mandate, commanding the respondent, as controller of the state, to issue a warrant upon the state treasury for the amount claimed to be due on a certain bond and on certain coupons. Judgment was *285 entered denying the prayer of the petitioner, and from that judgment he has appealed to this court.

The bond mentioned was issued July 15, 1854, under an act approved May 3, 1852 (Stats. 1852, p. 59), authorizing the state treasurer to issue bonds to an amount not exceeding six hundred thousand dollars for the payment of expenses of certain expeditions against the Indians. Bonds to the full amount authorized by the act were issued, and made payable May 2, 1862, with annual interest coupons attached. It was stipulated in the bonds that they should be payable at the office of the state treasurer, “ provided the same be not sooner paid from funds anticipated in said act to be derived from the government of the United States, with interest at the rate of seven per cent per annum, payable at the state treasurer’s office on the surrender of the annexed coupons on the first day of January, a. d. 1853, and annually thereafter.” Some of the coupons presented were attached to this bond; others were detached from other bonds issued under the same act, and the remainder were detached from bonds issued under the act of February 15, 1851, hereinafter referred to.

It is claimed by the respondent that the bonds and coupons are not audited claims, and that the controller, by the provisions of section 672 of the Political Code, is prohibited from drawing his warrant for such claim until it has been approved by the state board of examiners; but, after careful consideration of all the provisions of the code and the ^decisions bearing upon the subject, we are satisfied that the point is not well taken. (Meyer v. Porter, 65 Cal. 67 ; Freehill v. Chamberlain, 65 Cal. 603 .)

Section 1 of the act of 1852 (Statutes of 1852, page 59), reads as follows: “ Section 1. A sum not exceeding six hundred thousand dollars is hereby appropriated and set apart as an additional war fund, payable in ten years out of any money which may be appropriated by Congress to defray the expenses incurred by the state of California, and interest thereon at the rate *286 of seven per cent per annum, in the suppression of Indian hostilities, or out of the proceeds of the sale of any public lands which may be donated or set aside by Congress for that purpose; and should no such appropriation or donation be made, or if an amount sufficient should not be appropriated or donated within the said ten years, then the bonds authorized to be issued by this act shall be good and valid claims against the state, and shall be paid out of any moneys in the treasury not otherwise appropriated to pay the expenses of the expeditions mentioned in this act.”

We think it is clear that the liability of the state upon the bonds thus provided for was conditional; they were conditioned upon the failure of Congress to make an appropriation to pay them. Upon the failure of Congress to do so, and not before, were they to become good and valid claims against the state. They were to be paid within ten years; and if Congress within that time made no appropriation to pay them, they were to be paid out of money in the state treasury not otherwise appropriated. Congress did make an appropriation to pay these bonds. Section 9 of the act of Congress of August 5, 1854, provided as follows: “Sec. 9. And it is further enacted that the secretary of war be, and he is hereby, authorized and directed to examine into and ascertain the amount of expenses incurred and now actually paid by the state of California in the suppression of Indian hostilities within the said state prior to the first day of January, a. n. 1854, and that the amount of such expenses when so ascertained, be paid into the treasury of said- state; provided, that the sum so paid shall not exceed in amount the sum of nine hundred and twenty-four thousand two hundred and fifty-nine dollars and sixty-five cents; which amount is hereby appropriated out of any money in the treasury not otherwise appropriated.”

But it is said that subsequent acts of Congress imposed conditions which were not in any way binding on the bondholders, and that in any event the condition *287 was not complied with until the funds provided by the act of Congress were paid into the' state treasury.

Neither of these contentions we think is sound. Section 8 of the act of Congress passed August 15, 1856, provides: “That the secretary of war is hereby authorized and directed to pay to the holders of war bonds of the state of California the amount of money appropriated by act of Congress, approved May (August) 1854, in payment of expenses incurred and now actually paid by said state of California for the suppression of Indian hostilities within the said state prior to the first day of January, a. d. 1854, under the following restrictions and regulations: Before any bonds shall be redeemed by the secretary of war they shall be presented to the board of commissioners appointed by the legislature of said state by an act approved April 19, 1856, and the amount due and payable on each bond be indorsed thereon by said commissioners. Upon presentation to the secretary of war of any bond or bonds thus indorsed it shall be his duty to draw his warrant in favor of the holder or holders thereof for the amount certified to be due upon the same by said commissioners, upon the secretary of the treasury, who is hereby directed to pay the same; provided, that said amounts in the aggregate shall not exceed the amount of money appropriated by the act of Congress approved August 5, 1854. Said bonds, after redemption, and after taking off the coupons that remain unpaid, shall be delivered to the secretary of war to be canceled.”

The conditions therein provided were not unreasonable, but were merely such precautionary measures against imposition and fraud as Congress had a right to take. The act of May 3, 1852, contemplated action on the part of Congress, and the bondholders must have known when they accepted the bond that if Congress made an appropriation to pay it, some safeguard would be provided to prevent fraud and imposition. Furthermore, by an act passed June 23, 1860 (12 U. S. Stats., p. 104, sec. 4), Congress provided as follows:

Our conclusion is that the state of California never became liable to pay bond 420, or its coupons, or any of the coupons in suit of the bonds issued under the act of 1852.

The question as to the liability of the state upon the coupons of bonds issued under the act of 1851 is not so clear. Sections 1 and 7 of that act read as follows:

Respondent claims that if the act provided for an appropriation to pay the bonds and coupons therein referred to, which is denied, then, it having been shown *291 that there has been at all times since the maturity of the coupons in suit, in the general fund, sufficient money with which to pay these coupons, the action is barred by the statute of limitations. But the court found that “ from 1862 to 1889, both inclusive, there was not in any year any surplus in the general fund in the state treasury in excess of appropriations for current expenses, and special appropriations for particular purposes for that year,” and we know from the public records that in every year, except 1889, since the obligations in suit matured, there has been levied upon the property of the state an amount equal to, and specifically appropriated by the legislature for, the expenses of the state during the fiscal year for which the tax was levied. There has never been, prior to the year 1890, any money in the state treasury which had not been appropriated by the legislature to some specific purpose for the support of the state government prior to the time of its receipt by the state treasurer. The findings show that in 1890, for the first time, a surplus of about five hundred thousand dollars was received into the state treasury. Prior to that time the petitioner never could have maintained a mandate for the payment of his coupons, and this being so, of course the statute of limitations is no bar to the proceeding. The words of the act, “not otherwise appropriated,” cannot be taken to mean “not heretofore otherwise appropriated.”

The bonds were not to mature until the expiration of ten years, or at the option of the state after five years. It was intended that the obligations provided for by the act should be payable out of any money which should at their maturity or thereafter be found in the state treasury, and which at the time it reached the treasury had not been appropriated to some other purpose. (Humbert v. Dunn, 84 Cal. 57 .) Sufficient funds must be reserved to defray the expenses of the government— the ordinary expenses of the legislative, executive, and judicial departments of the state. Respondent claims that interest is one of the expenses of the state as much *292 as salaries of the judges, the governor, and other state officers, and cites in support of the proposition In re Appropriation by General Assembly, 13 Col. 316 ; but the constitution of that state, in providing for the necessary appropriations to defray the expenses of the executive, legislative, and judicial departments of the state government for each fiscal year, expressly includes “interest on any valid public debt,” and the case cited is authority in support of the proposition that the appropriations to defray the expenses of the government, for a particular fiscal year, are entitled to preference over any other appropriations from the general public revenue of the state, without reference to the dates of their passage. It is a general rule that when payment is provided for out of a particular fund, or in a particular way, the debtor cannot plead the statute of limitations without showing that the particular fund has been provided, or the method pursued. (1 Wood on Limitations, 2d ed., p. 363; County of Lincoln v. Luning, 133 U. S. 529 ; Underhill v. Sonora, 17 Cal. 172 ; Freehill v. Chamberlain, 65 Cal. 603 .) No provision was made by the state for the payment of these bonds until the year 1889, and we are of the opinion, therefore, that the stat ute did not begin to run against the bonds or coup /s nnt.il that time. If the petitioner had presented his coupons for payment prior to that time, his demand would have been refused on the ground that there were no funds. He could not sue the state, because there never was any act authorizing him to sue. “His remedy—if remedy it may be called—still lay in the voluntary exercise of the taxing power of the state. In other words, the state, by reason of her sovereignty, still held control of the question of payment as to all its incidents of time, mode, and measure.” (Sharp v. Contra Costa County, 34 Cal. 284 ; Rose v. Estudillo, 39 Cal. 270, 275 ; People v. Miles, 56 Cal. 401 .)

It is contended by appellant that his bonds and coupons bear interest from the time of their maturity until payment; but section 1917 of the Civil Code, cited, does *293 not apply to an indebtedness of the state, and the state is not liable to pay interest on its debts, unless its consent to do so has been manifested by an act of its legislature, or some lawful contract of its executive officers. (United States v. North Carolina, 136 U. S. 211 ; Carr v. State, 127 Ind. 204 ; 22 Am. St. Rep. 624 .) In mandamus the controller can be required to draw his warrant only for what is expressly authorized by the statute. (Auditorial Board v. Arles, 15 Tex. 72 ; Davis v. Porter, 66 Cal. 658 .) Davis v. County of Yuba, 75 Cal. 452 , was an action brought to recover the sum of five thousand six hundred dollars and interest—it was not a case of mandate.

The appropriation made by the act of 1851 was not repealed by the act of 1852, as claimed by respondent. The latter act expressly provides that “the repeal in no wise affects the war loan bonds already issued under the provisions of the act so repealed.”

In view of what has been said, it is unnecessary to consider the contention of the respondent that the act of 1852 is unconstitutional because it created a debt or liability against the state exceeding the limit provided for in article VIII, constitution of 1849, and it is not claimed that the act of 1851 is unconstitutional on that or any other ground.

We think that petitioner is entitled to a warrant for payment of the coupons issued under the act of 1851, but is not entitled to a warrant for the payment of bond No. 420, or any of the coupons in suit issued under the act of 1852.

The judgment is reversed, with directions to the court below to issue a peremptory writ of mandate to respondent, commanding him to draw his warrant upon the state treasurer, payable out of the general fund, in favor of petitioner, for the sum of eighteen hundred dollars, and to further adjudge that petitioner herein recover from the defendant the costs of this proceeding.

McFarland, J., Fitzgerald, J., and Garoutte, J., concurred.

*294 We dissent from the judgment because in our opinion the only appropriation made by the act of February 15, 1851, for the payment of the bonds issued thereunder was such money not otherwise appropriated as might be in the state treasury at the date of the maturity of such bonds. Upon all the other points which it discusses we fully concur in the foregoing opinion of Mr. Justice Paterson.

De Haven, J., Harrison, J.

Rehearing denied.