McGuire v. Wentworth

DOOLING, J.,

pro tem.

This is a proceeding for a writ of mandate brought originally in the superior court to compel defendants as Auditor and Treasurer of the city and county of San Francisco to withdraw a certain deposit of public money alleged to have been made in a bank of that city and county without complying with the provisions of the charter of the city and county governing such deposits. The respondent Treasurer’s demurrer to the petition was sustained and the judgment appealed from followed.

The respondent Treasurer supports his action in making the deposit by pointing to a general statute upon the subject adopted in 1927 (Stats. 1927, p. 1389) ; and the dispute between the parties is as to whether this statute or the charter provisions control.

To the solution of this question a consideration of the constitutional and judicial history upon the subject will materially contribute. In

Yarnell

v.

City of Los Angeles,

87 Cal. 603 [25 Pac. 767], our Supreme Court held that under the then existing constitutional provisions a city treasurer in California had no power or authority to deposit any public moneys in any bank or other private institution. Thereafter in 1906 section 16%, article XI, was added to our Constitution (see Stats. 1907, p. xxxv). That amendment, so far as material here, provided that: “All moneys belonging to the state, or to any county or municipality within this state, may be deposited in any national bank

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or banks ... in such manner and under such conditions as may be provided by law.” A general statute having been enacted to effectuate this constitutional amendment, the Treasurer of the city and county of San Francisco, purporting to act pursuant thereto, made such a deposit. In

Rothschild

v.

Bantel,

152 Cal. 5 [91 Pac. 803, 805], the Supreme Court held that the deposit. of the funds of a charter city was a municipal affair and that the then existing provisions of the San Francisco charter prohibiting such deposits were paramount in San Francisco to the general law on the subject. In view of the subsequent changes in section 16%, article XI, of the Constitution, it is fruitful to consider the reasoning of the Supreme Court in the Rothschild case.