McDonald v. Bird

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J.. concurring.

The Consolidation Act, applicable to the city and county of Sacramento, (Statutes 1858, 279) provides, by the thirty-sixth " section, that the revenue collected or accruing prior to the first of January, 1859, shall be apportioned as follows: Twelve per cent, to the School Fund, eight per cent, to the Pauper Fund, eighteen per cent, to the Salary Fund, twelve per cent, to the Contingent Fund, and the balance (fifty per cent.) to the [198]General Fund, which shall be applied to the payment of outstanding Auditor’s warrants drawn on the Treasury in the order of their registry. It is conceded that McDonald held warrants of the character described, which were duly registered as far back as the twelfth of August, 1853 ; and that there is now in the General Fund money enough to pay them. We think it not at all important whether these warrants were subject to be funded under the Act of 1858. This was a privilege, (if such was the fact) but it was not an obligation on the part of the holder. It secured him a benefit, if he chose to accept this provision, but it did not deprive him of any of his rights if he refused ; at any rate, his declining to fund them did not make the warrants any the less securities answering to the description given in the act. They certainly fall within the description of preferred claims given in the section quoted ; and we see nothing in any other section or act, and have been referred to no provision at all excluding them from the purview and operation of the language, which seems to include them within its natural meaning. Nor do we see anything in reason which should exclude them; indeed, the fact that they have been left so long unpaid would seem to give them an added claim to this recognition and provision. Nothing in the case of McDonald v. Maddux (11 Cal. 187) affects the question here.

Judgment reversed, and cause remanded for judgment in pursuance of this opinion.