Kendall

This cause was submitted in Bank, and on June 9, 1896, the following decision was rendered:

“HENSHAW, J.—This is an application for a writ of mandate to compel the respondent, as treasurer of the city of Sacramento, to pay the plaintiff the principal of certain overdue bonds of the city of Sacramento, with interest thereon from the date of their maturity. A demurrer to the petition was sustained by the trial court, and judgment thereupon entered against plaintiff, from which judgment he prosecutes this appeal.

“The question thus presented is whether the bonds of the city of Sacramento, issued under the provisions of the act of April 25, 1858 (Stats. 1858, p. 267), bear interest after their maturity.

“Various questions touching the construction of the act of 1858. under which these bonds were issued, and the rights of the bondholders thereunder, have been decided by this and other courts. (Meyer v. Brown, 65 Cal. 583 ; Davis v. Porter, 66 Cal. *108 658 ; Bates v. Porter, 74 Cal. 224 ; Bates v. Gerber, 82 Cal. 550 ; Davis v. Sacramento, 82 Cal. 562 ; Kennedy v. Sacramento, 10 Saw. 29 .) By these cases it is held that the act constitutes a contract between the city and the…

I dissent, and am of the opinion that the judgment of the court below should he affirmed.

The rights which the appellant has against the city are not those of a general creditor. He could not recover a judgment against the city, upon his bonds, for a single dollar; for the bonds were issued and accepted by the bondholders under a statute which. provides that the city “shall not he sued in any action whatever.” The complaint does not show the form of the bonds; but, assuming that they are on their face similar to ordinary bonds issued by corporations, they do not in themselves constitute complete and independent contracts. They are only parts of the contract which was made between the bondholders and the city by the passage of the act of April 24, 1858, and the issuance and acceptance of the bonds according to the provisions of that act—a contract, as was said in Meyer v. Brown, 65 Cal. 589 , “as *112 solemn and binding .... as it wordd have been if made between private persons.” By that contract they waived all rights as general creditors under their old floating demands against the city, which were of uncertain value, and agreed to rely upon a special trust fund to consist of…

I dissent. This is a proceeding by mandamus to enforce payment of interest on certain bonds of the city of Sacramento. The bonds fell due on the first day of February, 1888, and on the twelfth day of February, 1895, the holder presented them to the city treasurer with a demand that he should pay the principal and interest thereon from maturity. The treasurer refused to pay any interest, and refused to pay the principal except upon condition that the bonds should be surrendered. He took the position, in other words, that the bonds ceased to bear interest at maturity, or, if they did not cease to hear interest, his duty at all events required him to pay the principal alone, and to insist upon the surrender of the bonds as a condition of payment. In the superior court, the position of the treasurer was upheld—his demurrer to the petition for the writ was sustained, and the proceeding dismissed.

From that judgment the plaintiff appeals, and in support of his appeal contends: 1. That the bonds in question continued to draw interest at the conventional rate after maturity; and 2. That it was the duty of the defendant to pay the bonds, with accrued interest, out of the funds in his…