Conlin v. Board of Supervisors

Harrison, J. At the last session of the legislature the following act was passed March 28, 1895 (Stats. 1895, p. 348):

“ Section 1. The board of supervisors of the city and county of San Francisco is hereby authorized and directed to order paid to John J. Conlin, or his assigns or legal representatives, the sum of sixty-one thousand five hundred and seventy-seven ($61,577) dollars.

“ Seo. 2. The auditor of said city and county of San Francisco is hereby authorized and directed to audit the demand for the said sum of money named in section 1, and to issue his warrant therefor to John J. Conlin, his assigns or legal representatives; and the treasurer of said city and county is herebjr directed to pay said demand and warrant for said sum of money upon presentation therefor.

“Sec. 3. This act shall take effect immediately.”

The appellant thereafter presented his claim to the board of supervisors for said sum of money, together with a duly authenticated copy of said act, and demanded that the same be allowed and ordered paid. The board of supervisors refused to allow the same, and thereupon the plaintiff made application to the superior court for a [407]writ of mandate compelling said board to allow the claim. A demurrer to his petition was sustained by the superior court, and from the judgment entered thereon the present appeal has been taken.

The validity of this act is assailed by the respondents upon the ground that the legislature has not the power to direct the payment of moneys out of the treasury of the city and county of San Francisco, against its will, or without its consent. It is conceded by the appellant that the legislature has not the power to direct or command the municipality to make a gift of its funds, but it is contended on his behalf that the legislature has such control over these funds that it may appropriate them for any public purpose, and that, as courts cannot look outside of the act making such appropriation, but must determine the character of the appropriation from the terms of the act alone, it is to be presumed that the legislature made the appropriation for a public purpose; that, if the legislature had the power under any circumstances to pass the act in question, it must be assumed that the circumstances existed in the present case and authorized its passage. In support of this proposition are cited Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, and Rankin v. Colgan, 92 Cal. 606. These cases, however, involved the power of the legislature to appropriate money from the state treasury, and did not touch upon the power of the legislature to deal with the moneys in the treasury of a municipal corporation. Assuming, however, that the legislature may appropriate the funds in the state treasury for any public purpose, it does not follow that it has the same power over municipal funds. While the funds in a municipal treasury are in a certain sense public, they are so only for the limited public which has contributed them, but not for the entire state, and the power of the legislature over these funds is not coextensive with its power over the state funds, but is limited by certain provisions of the constitution.