City of San Francisco v. Tallant

Baldwin, J., delivered the opinion of the Court Terry, C. J., concurring.

This' is an appeal from an order granting an injunction restraining the defendants, as commissioners, under an act of the Legislature of May 12, 1851, from receiving moneys provided to be paid to them by the act called the “ Funding Bill.” Conceding that the plaintiffs have the right to sue out this proceeding, and that the city and county, under the act of 1851, are interested in the fund paid to the commissioners after the same has gone into the hands of these trustees, still, on those concessions, we think the case made by the plaintiffs fails to show any just claim to the summary power invoked by them.

The defendants are not simply private agents; they are public officers, clothed with important trusts, for the due administration of which they have executed bonds, with sureties. It is not shown that these bonds are insufficient, nor that the defendants are misappropriating the trust-fund, nor that it is unsafe in their hands. If this were shown, upon the supposition that'the plaintiffs have the right to interpose, the municipal officers would show themselves guilty of the dereliction they charge upon the defendants, for they seek only to restrain the payment of the money now in the municipal treasury to the commissioners, and this sum constitutes only a portion of the fund; leaving the large remainder in the charge, and, if they are unworthy or incompetent, to the mercy, of these trustees.

[587]The rule which governs in such case, and alone entitles the parties to intervene to restrain the proceedings or control the action of the trustees, is, that the fund is in danger of being wasted or impaired. "Nothing less than this could justify a Court in interfering with duties cast upon public officers by the law. Those trustees receive their authority from the statute, and are subject to its requirements, and bound to fulfill its provisions. They have executed bonds, and given the required security for the fulfillment of their duties. Unless, therefore, it be shown that the fund thus entrusted to them is in danger, it is not perceived why any different rule should be applied to these officers than those which apply to the State Treasurer, or to administrators, or any other class of officials charged with pecuniary trusts. It is true, that the fund may be in danger from various causes: from the dishonesty of the agents; from a reckless course of management; from positive acts of mal-administration, or the like. But the acts which would justify such a remedy as that invoked, must be such as to show that a'liability will be incurred or an injury done by threatened or probable malfeasance for which the agents’ bond or personal responsibility would afford no possible or adequate redress.