Bekins v. Raub

TUTTLE, J. Petition for writ of mandate, commanding and directing the treasurer of the county of Sutter, as trustee of Reclamation District No. 1500, to make his call for the payment of an assessment sufficient to pay all outstanding and maturing bonds of said district which are not barred by the statute of limitations. A general and special demurrer was interposed to the petition, and an answer was also filed.

It is contended by respondents that the petition does not state sufficient facts to justify this court in issuing the writ. We are of the opinion that this point is well taken.

The petition alleges, substantially, that petitioners are the owners and holders of bonds and interest coupons issued by said reclamation district, some of which matured January 1, 1936, and some January 1, 1938, together with certain interest coupons maturing January'1, 1935, January 1, 1936, and subsequently. Petitioners also allege that they are the owners of $36,500 second issue bonds not yet due; that by reason of an opinion rendered by this court in the case of Copeland y. Raub, 36 Cal. App. (2d) 441 [97 Pac. (2d) 859], which upheld the right of a landowner to have his bonds and coupons credited at their face value on a call in satisfaction of unpaid assessments against his land, several assessments called and commencing on the date April 1, 1939, were paid by bonds and coupons to such an extent that there was insufficient cash left in the county treasury to meet the matured bonds and coupons belonging to petitioners; that petitioners had coupons maturing July 1, 1939, and January 1, 1940, which they had presented for payment, but which the treasurer refused to pay, and which are not payable by reason of the want of funds due to acceptance of said matured bonds and coupons in payment of assessment calls Nos. 39 and 40; that thereafter, respondent Raub issued call No. 41; that by reason of the acceptance by respondent Raub of [711]bonds and coupons in payment of said calls, there is a deficiency arising with respect to the payment of maturing bonds and coupons in the sum of approximately $70,000.

Petitioners pray that this court issue a writ of mandate directing the treasurer of Sutter County, as trustee of Reclamation District No. 1500, to make his call (No. 42), for the payment of an assessment instalment upon the lands of said district, on October 1, 1940, and that he include therein the call for funds sufficient to pay all outstanding and matured bond obligations of Reclamation District No. 1500 which are not barred by the statute of limitations, os well as to pay the deficiency maturities of January 1, 1940.