People ex rel. Livingston v. Pacheco

By the Court, Rhodes, J. The relator purchased from the State forty-five bonds, each for the sum of one thousand dollars, issued under the Act entitled “ An Act granting bounties to the volunteers of this State enlisted in the service of the United States, for issuing bonds to provide funds for the payment of the same, and to levy a tax to pay such bonds,” approved April 4th, 3 864. (Stats. 1864, p. 486.) Those purchased by the relator, were all that were sold under the Act, up to the time of the commencement of this action. The bonds were sold at private sale, on the 23d day of December, 1864, for eighty-eight per cent, but interest did not begin to accrue on the bonds previous to the 1st day of January, 1865, because the coupons for the semiannual interest to fall due at that date, were cut off and can-celled by the Board of Bounty Commissioners, at the time of the sale and delivery of the bonds. On the 31st day of December, 1864, there was the sum of forty-eight thousand forty-seven dollars and seventy cents in the Interest and Redemption Fund provided for in section fifteen of the Act, and on that day, the Treasurer transferred forty thousand dollars from that fund to the General Fund in the State Treasury. The relator now seeks by mandamus to compel the Treasurer to return to the Interest and Redemption Fund the amount transferred by him to the General Fund, and to proceed to the redemption of the bonds according to the directions contained in the Soldiers’ Bounty Act.

[212]The answer denies that the people are the real parties in interest; or that the relator has any authority from them or the Attorney-General to use their name in this proceeding; or that they are jointly interested with the relator in the proceeding or the subject matter thereof; and he avers that the transfer of the funds was made by authority of the Soldiers’ Bounty Act. The other matters in the answer do not require any notice, as the parties stipulated that the cause be submitted for decision upon the facts alleged in the petition, with the admission that the coupons for the interest to accrue January 1st, 1865, were cut oif and cancelled, as has been mentioned, and that no other of the bonds were sold, besides the forty-five bonds sold to the relator.

There can be scarcely a question, that the Treasurer could not lawfully transfer the funds at the time he performed that act. The provision of the Act on that subject, as found in section eighteen, is as follows : “ And in case there should at any time be in the fund created by this Act, for the payment of said interest and the redemption of said bonds, any surplus moneys not needed for the payment of said interest or the redemption of any bonds, it shall be the duty of the Treasurer of State to transfer such surplus moneys to the General Fund of this State.” In section nine it is .provided that the first payment of interest should not be made sooner than the 1st day of January, 1865. It thus appears that the time for the making of the transfer could not arrive previous to that day. It was doubtless expected by the Legislature that interest would accrue on that day upon bonds that might have been previously sold, and in that view no provision was made for a ‘transfer of the funds until after the several times for the payment of interest had passed; and although, according to the facts appearing in this case, no interest could fall due on the 1st day of January, 1865, yet the Act has not permitted the Treasurer, for that_ reason, to make an earlier transfer of the funds.