Paxson v. Holt

APPLICATION-to-the Supreme--Court for-a-writ-of mandamus.

The- facts- are stated in the-opinion.

First — The City and County of San Francisco is an integral part of the government of the State and the general Statute of Limitations does not apply to it. Indeed from the very nature of things it could not. The State cannot be sued except by express permission and the limitations upon the right to sue or enforce a claim against it are the only statute of limitations required, or which would be apposite. Why should there be a limitation upon the right to sue' when no such right exists ? (Hunsalcer v. Borden, 5 Cal. 288; Napa Valley II. JR. Co. v. Napa Co., 30 Cal. 435; Sharp v. Contra Costa Co., 34 Cal. 284; Sherborne v. Yuba Co. 21 Cal. 113; Huffman v. San Joaquin Co., 21 Cal. 426.)

Second — Section 60 of the Consolidation Act evidently applies only tó the salaries provided by that Act, or at least, claims which accrued under it. Paxson v. Hale, cited above, substantially holds that this is a liability inherited by tbe city and county, but which does not accrue under it. The same is substantially decided in Frank v. City and County of San Francisco, (21 Cal. 268.)

This point was made in the case of Paxson v. Hale, and expressly overruled. There it was claimed by respondent, that the salary was within the language of the Act, which provides that “no payment can be made from the treasury, or out of the public funds, unless the same be specially authorized by this Act.” The dissenting opinion of Judge Sawyer shows that this very question was under discussion in this Court. Of course, the only reply to it is, that the liability is one that was imposed upon the city, and inherited by its legitimate successor; and that as the service was still required, the law did not by implication repeal the provision for compensation. It was not the salary of an officer of the new government, but a liability existing outside of the Consolidation Act.

That is not a fixed compensation, which it is necessary to present under that Act seems true from the case if the People v. Middleton, (28 Cal. 604,) and from the doctrine of the People ex rel. Hunt v. The Board of Supervisors, (28 Cal. 429.)

First — By Section 1 of “An Act to repeal the several charters of the City of San Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof,” approved April 19th, 1856, it is provided that the corporation, or the body politic then existing, and known as the City of San Francisco, shall remain and continue to be a body politic, in name and in fact, by the name of the City and County of San Francisco. (Stat. 1856, p. 145.)

In the case of Frank v. The City and County of San Francisco, (21 Cal. 696,) it was held that the corporation, the City of San Francisco, was not destroyed by virtue of the statute last referred to herein, but that it was continued.