BEATTY, C. J., dissenting. I dissent. This is a proceeding by mandamus to enforce payment of interest on certain bonds of the city of Sacramento. The bonds fell due on the first day of February, 1888, and on the twelfth day of February, 1895, the holder presented them to the city treasurer with a demand that he should pay the principal and interest thereon from maturity. The treasurer refused to pay any interest, and refused to pay the principal except upon condition that the bonds should be surrendered. He took the position, in other words, that the bonds ceased to bear interest at maturity, or, if they did not cease to hear interest, his duty at all events required him to pay the principal alone, and to insist upon the surrender of the bonds as a condition of payment. In the superior court, the position of the treasurer was upheld—his demurrer to the petition for the writ was sustained, and the proceeding dismissed.
From that judgment the plaintiff appeals, and in support of his appeal contends: 1. That the bonds in question continued to draw interest at the conventional rate after maturity; and 2. That it was the duty of the defendant to pay the bonds, with accrued interest, out of the funds in his hands.
If the appellant has failed to establish either of these propositions the judgment of the superior court should be affirmed.
I think it clear that the appellant has failed to establish the first proposition, and, if so, the second need not be considered, though it seems equally clear to my mind that, even conceding the plaintiff’s right to interest, it has been settled by several decisions of this court that it is not the legal duty of the treasurer to pay the accrued interest out of the funds in his hands, and, consequently, that mandamus is not the proper remedy.
The bonds in question were issued in pursuance of the act of April 24, 1858, by which the city and county of Sacramento were brought under a consolidated government. (Stats. 1858, p. 267.) At that date, there was outstanding against the city of Sacramento a large floating indebtedness, and the act provided for funding the whole of it upon terms which may be said to have embodied a compromise between the city and her creditors.
By section 37 of the act it was provided that, for the purpose of liquidating, funding, and paying the claims against the city of [115]Sacramento, the treasurer should cause to he prepared suitable bonds of the city, not exceeding the sum of one million six hundred thousand dollars, bearing interest at the rate of six per cent per annum from the first day of January, 1859, and payable at the office of the treasurer, one-fourth on the whole amount on the first day of February, 1888, one-fourth on the first day of February, 1893, one-fourth on the first day of February, 1898, and one-fourth on the first day of February, 1903. The interest on the bonds was to be made payable at the office of the treasurer on the first day of January of each year, and coupons for the interest were required to be attached to each bond in such manner that they could be removed without injury to the bond.
These bonds were to be issued in liquidation of all legal debts •of the city of Sacramento unpaid or unprovided for on the first day of January, 1859. It was provided that the claims against the city should be funded in the order of their reception in bonds having the shortest time to run. These were the main, and indeed all, the essential provisions of the act as to the refunding of the floating debt of the city, and, if there had been no other special provisions as to the time and mode of payment of the bonds and coupons, they would have carried with them the usual obligations and incidents of such securities. But there were very special and peculiar provisions contained in the act regulating and restricting the rights of the bondholders as to the time and manner of payment. The bonds were not a general obligation of the city payable out of any unappropriated revenue, but were to be paid only as provided in the act; that is to say, out of the special sinking and interest fund thereby created. Fifty-five per cent of the city revenues .were set apart to this fund, and it was to be applied to the payment of the annual interest and final redemption of the bonds. (Act, sec. 35.) It was made the duty of the treasurer to pay the interest as it fell due out of the interest funds as provided in the act. (Act. sec. 40.) But the city was not to be sued in any action whatever, nor were any of its “lands, buildings, improvements, property, franchises, taxes, revenues, actions, choses in action and effects to be subject to any attachment, levy, or sale, or any process whatever either mesne or final.” (Act, sec. 1.)
[116]If in any year there remained in the fund after paying the annual interest a surplus amounting to one thousand dollars, it was made the duty of the treasurer to advertise for the surrender of bonds, and to redeem those that were offered at the lowest rate not exceeding par. (Act, sec. 39.)
Such being the provisions of the statute, and the bonds having' been issued in strict conformity thereto, it is apparent—as has been many times decided by this and other courts—that the rights of the bondholders are not the same as those of holders of ordinary coupon bonds. Their rights are, on the contrary, strictly measured by the terms of this statute, and they can claim nothing under general provisions of law inconsistent with it. They are to be paid certainty, but they are to be paid only in the manner and in the order as in this act provided. It contains the terms offered to the creditors of the city. They accepted those terms and thereby contracted to be bound by them.
As remarked by -Judge Sawyer in Kennedy v. Sacramento, 10 Saw. 32: “The parties who surrendered their prior evidence of indebtedness and took these bonds took them under the provisions of this act, which was a contract made between the city and them that the bonds should be collected only in that particular mode, and no other; that there should be no other remedy for them—that the city should not be sued. The advantages which they obtained are subject to the provisions made for their payment, to the limitation put upon their remedy. The advantage to the city was that it should not be harassed by any other kind of suit, an extension of time for payment, and the reduction of the rate of interest. The advantage to the holders was the specific, certain, and permanent provision made for prompt payment in the future.y *
That was an action by the holder of overdue coupons detached from bonds issued under the act of 1858, in which he sought to recover a judgment against the city. The opinion of Judge Sawyer implicitly concedes—what indeed could not be denied—that the action would have been well brought if these bonds had been of the ordinary character, but be held that by reason of the peculiar provisions of the statute no action against the city could be maintained, and that the only remedy of the creditor was man[117]•idamns against the treasurer to compel him to pay any money there might be in the sinking fund.
Besides this decision of the circuit court there have been numerous decisions of this court, all based upon the fundamental proposition that the act of 1858 embodies the contract between the city of Sacramento and the bondholders. (Freehill v. Chamberlain, 65 Cal. 603; Meyer v. Brown, 65 Cal. 583; Davis v. Porter, 66 Cal. 658; Bates v. Porter, 74 Cal. 224; Bates v. Gerber, 82 Cal. 550; Davis v. Sacramento, 82 Cal. 562.)
In Freehill v. Chamberlain, supra, which was mandamus to ■compel the treasurer to pay coupons more than four years past ■due, the statute of limitations was interposed as a defense, but it was held that, since the city could not be sued upon the coupons, the statute did not begin to run until the money applicable to the payment of the coupons was in the sinking fund, the implicit concession being that the coupons would have been barred if there had been any general obligation resting upon the city to pay-
Davis v. Porter, supra, was mandamus to compel the treasurer to pay overdue coupons with interest thereon.
The court did not in that case hold—as erroneously assumed ■on the former hearing of this case—that the coupons did not bear interest after maturity. On the contrary, it was expressly ■conceded for the purposes of the decision that the plaintiff was entitled to interest on the coupons after maturity, and the decision went altogether upon the ground that whether the city was ■or was not liable for interest it was at all events not the duty of the treasurer to pay anything more than the face of the coupons ■out of the interest and sinldng fund.
The principle of the decision, clearly deducible from the whole ■opinion of Justice Thornton and the authorities cited, is, that the only legal duty of the treasurer enforceable by mandamus is to pay the principal of the written obligations of the city in the order of their maturity and presentation, and that the right of the bondholders to interest after maturity—conceding its existence—imposed no additional duty upon the treasurer. And, if this is true with respect to the coupons, it must be equally true with respect to the bonds themselves; for both by the general law [118]and the statutes of this state past due coupons, as well as past due bonds, bear interest in all cases where the obligation'to pay is general and unqualified.
But, although in Davis v. Porter, supra, the question whether these coupons bore interest after maturity was left open and undecided, it was clearly and distinctly held in the latter cases of Bates v. Gerber, supra, and Davis v. Sacramento, supra, that they do not bear interest.
The ease of Bates v. Gerber, supra, was exactly the same as Davis v. Porter, supra—mandamus to compel the treasurer to pay overdue coupons with accrued interest. Kecessarily the plaintiff in that case had to contend for a reversal of Davis v. Porter, supra, but the court reaffirmed its former decision, and went much further. The treasurer in the Bates case had not only refused to pay the interest claimed to have accrued after maturity of the coupons, but had refused to pay the face of the coupons unless they should be surrendered as fully paid and satisfied, and it was earnestly contended on the part of the plaintiff that the coupons “drew interest from their maturity under the general law providing for such interest after maturity on all contracts, and that as the debt existed the treasurer had no right to. impose, as a condition upon which he would pay the annual interest, that the coupons should be surrendered.”
It is important to note carefully the answer which the court made to this proposition. They did not deny—and they could not have denied—that under the general law of the state past due coupons draw interest, but they held that the bonds from which these coupons were detached “were provided for by a special statute which provided a specific fund out of which they should be paid. The act provided for the payment of the ¡mincipal and annual interest, and nothing more. (Citing statute.) There was no other fund out of which the interest demanded could have been paid, and to have paid out a part of the fund on a liability not provided for or allowed by law would have been to divert a part of the fund from the purposes intended, and thereby to deprive other bondholders of their annual interest, and, perhaps, of their principal.” The principal opinion from which this quotation is made contains more to the same effect, [119]and announces the conclusion that these coupons, by reason of the special provisions of the contract between the city and its creditors, do not draw interest after maturity. The concurring opinion of Justice Fox is much fuller, and, if possible, more emphatic in its assertion of the same proposition. In the subsequent case of Davis v. Sacramento, supra, which was an ordinary action against the city upon past due coupons, the same conclusion was reached, and the court in its opinion took occasion to distinguish the case of Davis v. Yuba County, 75 Cal. 452, in which interest was recovered on past due coupons upon the ground that the liability of Yuba county on her bonds was a general one, whereas in the case of the Sacramento bonds there was no liability except to pay_ out of a special fund.
These two cases last cited are strictly in point, and decisive of this case, because, as above remarked, 'there is no distinction to be made under the common law or under the statutes of California between past due coupons and overdue coupon bonds in respect to the right to collect, or the obligation to pay, interest. Obligations of either class draw interest where there is a general liability of the debtor to pay, but, when payment is to be made in a prescribed order out of a special fund, then the obligations payable out of such fund are to be paid in the amounts severally called for in their due order of payment, and not otherwise, and this for the reason that whenever payment of the specified amounts in the prescribed order is departed from one creditor is given what belongs to another—there is a robbing of Peter to pay Paul.
The passage which I have italicized in the above quotation from the opinion of the court in Bates v. Gerber, supra, states this proposition very forcibly, and it is the whole, foundation of the decision in that case and the subsequent case of Davis v. Sacramento, supra.
Now, applying that proposition to the facts of this case, what do we find? Of the bonds and coupons issued under the act of 1858 each was an express written promise of the city of Sacramento to pay a definite sum of money at a certain date. The payments to be made according to these written promises may be tabulated as follows:
[120]January 1, 1860,....... “ 1, 1861,....... “ 1, 1862........ and the same every year to and including January 1, 1888,....... February 1, 1888,....... January 1, 1889,........ “ 1, 1890,....... “ 1,1891,....... “ 1, 1892,....... “ 1,1893,....... February 1, 1893,....... January 1, 1894,....... “ 1, 1895........ “ 1, 1896........ “ 1, 1697,....... “ 1,1898,....... February 1, 1898........ January 1, 1899,....... “ 1, 1900,....... “ 1,1901,....... “ 1, 1902........ “ 1, 1903,....... February 1, 1903........ $96,000) ..................6 per cent $96,000 i................. on $96,000 J ..................$1,600,000 $96,000.................... $400,000................°f principal $72,000).................. ..............6 per cent .............. " on ..............$1,200,000 $72,000 $72,000 $72,000 $72,000 $400,000................bf of principal $48,000) .................. $48,000 ..................6 per cent $48,000 ¡-.................. on $48,000 I.................. $800,000 $48,000 J.................. $400,000................% of principal $24,000) .................. $24,000 I..................6 per cent $24,000 [.................. on $24,000 .................. $400,000 $24,000 J.................. $400,000............last of principal
All these sums were to he paid by the treasurer out of the sinking fund at the specified dates. From the fact that the petitioner’s bonds, which are of the class that fell due on the first day of February, .1888, were still unpaid on the twelfth day of February, 1895, we must infer either that he had neglected to present them at the proper time and receive payment out of the funds provided for their redemption, or that there was no money in the special fund prior to the time of their presentation applicable to their payment.
The former supposition would be fatal to petitioner’s claim to interest, and we are justified in assuming—what is indeed a notorious fact attested by the various cases above cited—that the fund provided for the payment of these obligations proved inadequate to their discharge as they fell due, and that the coupons payable in January, 1888, had only recently been taken up when payment of these bonds and interest was demanded—they being next in order of payment.
This being so, the position of petitioner makes it necessary that he should contend not only that the principal of his bonds was payable out of the special fund next after the coupons of 1888, but that he should have out of that same fund along with the principal of his bonds six per cent interest thereon for the years 1889, 1890, 1891, 1892, 1893, 1894, and 1895, to the ex-[121]elusion of the coupons (amounting to seventy-two thousand dollars annually), expressly made payable out of the same fund, in 1889, 1890, 1891, etc., and four hundred thousand dollars principal of the bonds payable by their terms, February 1, 1893. Petitioner must, in other words, successfully maintain the proposition that he is entitled, by virtue of the general law, to receive money out of the special fund in preference to creditors to whose prior specific claims, founded on express written promises, the fund is appropriated by the act under which the bonds were issued.
And, if the petitioner can maintain this proposition as to his bonds, so can every other holder of the bonds of 1888, 1893, etc., and the result may be that somewhere in the twentieth century holders of the bonds of 1893 will be drawing interest up to date, while coupons belonging to this century will remain unpaid.
This, however, is the very thing which, according to the cases above quoted, cannot be done. The principle of those decisions, one and all, is that the act of 1858 embodies the contract between the city of Sacramento and the holders of these securities, and that nothing can be claimed by the latter under the general law relating to coupon bonds which is inconsistent with or would defeat the purposes of, or impair the rights secured by, the act of 1858.
All the bondholders have claims upon that fund—a fund insufficient to satisfy their claims as they mature—and the only thing to do is to pay them as the funds arise in the order of their maturity. To pay the holders of the bonds of 1888 interest which in any view they did not earn until after 1890, and leave unpaid the interest accrued on other bonds before that date, would be the grossest injustice. It would be giving to one set of bonds an enhanced value at the expense of other bonds, payment of which, both as to principal and interest, would be unduly postponed. It would violate the principle of our former decisions and take away vested rights of those who have dealt in these securities upon the faith of the doctrine so established. And besides the fact that those decisions are guarded by the principle of stare decisis, I have no doubt that they are correct, not only in the points decided, but in the reasons upon which they are based. [122]To my mind it is plain that the duty of the treasurer is to pay these bonds and coupons only at their face and only in the following order: First, the coupons in the order of their maturity to January 1, 1888; next, the bonds of February, 1888, in their serial order; next, the coupons of 1889, 1890, 1891, 1892, 1893, in order of maturity; next, the bonds of February, 1893, in their serial order, and so on to the end. In this way only can the behests of the statute be obeyed and the relative rights of the creditors be preserved. The only answer to this position is, that it would unjustly deprive the bondholders of interest on their overdue bonds—to which the obvious reply is, that the right to interest on overdue bonds is no more sacred than the right to interest on overdue coupons, and it has been held that no interest can be paid on overdue coupons without giving to one creditor what belongs to another. I think I have shown that the payment of interest on overdue bonds involves the same consequence.
There are other grounds from which the same conclusion— that these bonds, after maturity, do not bear interest—would seem to follow. In Sawyer v. Colgan, 102 Cal. 283, it was contended that bonds and coupons of the state bore interest after maturity by virtue of sections 1917 and 1918 of the Civil Code, but it was held that they do not apply to bonds of the state, because payment of interest after maturity is not a part of the contract, and the state cannot be bound without its consent. In Hopkins v. Contra Costa County, 106 Cal. 572, the same exception was made in favor of a county on the ground that counties are political subdivisions of the state. It is not easy to see why in any case a municipal corporation—a city and county—should not enjo)r the same exemption. But in this case there is a special reason for holding that it obtains. These obligations of the city and county of Sacramento were authorized by an act, the first section of which declared that no action should be maintained upon them. (Kennedy v. Sacramento, supra.) The state, in other words, granted to the city and county the same immunity from suits that it enjoyed itself, and, so far as it had the power, brought the municipality within the reason and protection of the rule which exempts the state from the obligation to pay interest on its overdue coupons and bonds.
[123]The judgment of the superior court should be affirmed. Yan Fleet, J., concurred.