Rose v. Estudillo

Temple, J.,

delivered the opinion of the Court:

On the 18th of March, A. D. 1868, an Act was passed by the Legislature to provide for the government of the County of San Diego. Among other things, that Act provides for the funding of the funded indebtedness of the county, and creates a Board of Commissioners, whose duty it is to “carefully examine into the legality or illegality of all the unfunded indebtedness, accounts, warrants, vouchers, claims,, or demands of every nature or character whatever, which now are or may remain outstanding against said county on the first day of April, 1868; and they shall audit and allow, or reject in whole or in part, any or all of said unfunded indebtedness, accounts, warrants,” etc., “according, as in their judgment, the same shall appear to be a legal and just claim against the county, or otherwise, ” etc. “No such certificate of indebtedness, warrant, claim, demand, or other charge, shall be a legal and valid claim against said county, or be paid, until passed upon, audited and allowed by said Board.” The Act then provides, that if the warrants are audited by them, they shall allow interest; provided, if only a portion due on the warrant is allowed by them, then interest shall be reckoned on that portion only.

The petitioner is the holder of certain warrants, issued by the Auditor of the county, and which had been duly presented to the Treasurer for payment, and indorsed “not paid for *274 want of funds,” prior to the passage of the Act. His claim, therefore, was a part of the recognized indebtedness of the county, authenticated and allowed as provided by law, and it was the duty of the Treasurer of the county to pay the warrants from the first moneys in the treasury properly applicable thereto. He had done all the existing laws required him to do.

It was not competent for the Legislature to pass an Act which would declare these claims invalid, nor could it authorize a commission to do so. Nor could the Legislature impose other and new conditions upon the creditors. (McCauley v. Brooks, 16 Cal. 11 ; People v. Bond, 10 Cal. 566 .)

The warrants of the petitioner, therefore, if he had chosen to have them funded, would have been conclusive evidence that his claim was legal and just within the meaning of the Act. The petitioner elected, however, not to present his warrants, and they have never been funded. By the terms of the Act, unless so presented and allowed by the Commissioners, they are not valid and legal claims against the county, and cannot be paid.

This provision of the Act is repugnant to the Constitution. The creditor could not be compelled to accept another and an essentially different mode of payment from that provided by his contract—that is to say, by the laws existing at the time he became a creditor of the county. The authorities cited (McCauley v. Brooks, supra) clearly establish that this restriction in the Constitution applies to contracts, to which the State is a party, as fully as to contracts between individuals. It is true, the State, by virtue of its sovereign power, may refuse to permit itself to be sued, or may omit to raise a revenue to pay its just debts, but it cannot annul contracts it has entered into, or deprive individuals of vested rights acquired under them. But if the revenue has been provided by law, and the money produced by it for the purpose of paying the debts the State has contracted to pay, the creditor, who by law is entitled to the money, has an interest in the fund, of which the Legislature cannot deprive him, (McCauley v. Brooks, supra; Robinson v. Magee, 9 Cal. 81 .)

In the ninth section of the Act referred to, the Legislature *275 has provided what taxes may be imposed by the county for county purposes, and has distributed them to the various funds, and designated the purpose for which each fund shall be devoted. Mo provision is made for that class of indebtedness to which the claim of the petitioner belongs, except the funding provisions already referred to. Mo moneys are provided from which it can properly be paid. Unless there are funds in the treasury, therefore, which were raised under the previous law, and by that law were designated to pay his claim, petitioner has no remedy except to apply to the Legislature to provide the means of paying his debt. The respondent is but a ministerial officer, and can only pay out the moneys in his charge as directed by law; and if he has no funds which the law authorizes to be applied to the petitioner’s debt, that fact will be a sufficient answer to this application. The petitioner cannot be compelled to accept the bonds provided by the Funding Act; but, on the other hand, the county cannot raise the money for his payment unless authorized to do so by law; and the power of taxation the State may authorize or not as it pleases. The revenues raised for other purposes cannot be applied by respondent to pay his debt. (Hunsaker v. Borden, 5 Cal. 288 ; Emeric v. Gilman, 10 Cal. 404 ; Sharp v. Contra Costa County, 34 Cal. 284 .)

By stipulation it is admitted that there was in the treasury of San Diego County, at the time the demand was made by the petitioner, the sum of $217 73, which was raised under the law as it stood before the passage of the above Act. It is shown, that petitioner’s warrants are first in the order of payment of the outstanding, unfunded debt of that county, which existed prior to the Act in question. As we have seen, the petitioner had a right to be paid, from these funds, of which the Legislature could not deprive him without his consent.

Is is, therefore, ordered that a peremptory mandate issue, requiring the respondent to pay petitioner from the treasury of San Diego County, the said sum of $217 73, to be credited upon the warrants held by him in their proper order.

Wallace, J., did not participate in the decision of this cause.