Priet v. Reis

Temple, C. This is an application for a writ of mandate to compel the defendant, as treasurer of the .city and county of San Francisco, to pay a warrant for damages, under the act of the legislature for widening of Dupont Street.

That act (Stats. 1875-76, p. 439) provided for the sale of bonds, and that the proceeds should be held to pay expenses and damages awarded to property-holders.

In case of a dispute as to whom the damages should be paid, the commissioners were to place a warrant for the amount in the hands of the clerk, and the claimants could sue the treasurer, joining other claimants; and the treasurer was to pay in accordance with the determination.

Among the awards was that mentioned in the complaint, for $10,932, the warrant for which was deposited with the county clerk because the claimants could not agree.

Judgment was entered in a suit to determine the rights of the claimants in 1883.

Section 9 of the act provides for the payment of the money realized from the sale of the bonds to the treasurer, to be devoted to paying expenses and damages; the fund to be called the “ Dupont Street fund.”

Section 13 provides for the levying of a tax, and that “when collected the said moneys shall be paid over to [87]the treasurer of the said city and county, and constitute a part of the Dupont Street fund, and to be paid out by said treasurer only in payment of the coupons attached to said bonds as the same from time to time become due.”

The same section provides for a tax to create a similar fund, and that the moneys so realized “ shall constitute a part of the Dupont Street fund, and shall only be paid out in redeeming bonds issued in pursuance of the act.”

The Dupont Street fund then consisted of three parts, each derived from a specified source and devoted to specific purposes; in short, three distinct funds. _

The moneys derived from any specific source could not be legally used in discharge of obligations other than specified as payable from such moneys. And as we have seen, it was expressly enacted that the moneys raised by taxation should be expended only in payment of coupons and bonds.

After paying all the damages awarded, except the claim here in question, and all expenses of the commissions, there was in the Dupont Street fund more than fifty-five thousand dollars derived from the sale of bonds, but on or about the first day of December, 1878, the then treasurer illegally used fifty-five thousand dollars of said money to pay interest on the bonds, and thereafter used of the money collected from taxes to pay interest, fifty thousand dollars to redeem fifty of the bonds, leaving in the fund $1,869.18, which has been paid upon the warrant.