Summary
In Goldsmith v. San Francisco, 115 Cal. 36, [46 P. 816], a similar situation existed, and the rule applicable was concisely and correctly stated by Mr. Justice Henshaw for the court as follows: "The reduction of the original claim to a judgment does not increase its dignity so as to authorize plaintiff to demand payment of it from any fund not subject to the primary demand."
Summary of this case from Arthur v. City of PetalumaOpinion
399
November 20, 1896
Appeal from a judgment of the Superior Court of the City and County of San Francisco. J. M. SEAWELL, Judge.
The facts are stated in the opinion of the court.
Mullany, Grant Gushing, for Appellant.
The clear intent of section 18 of article XI of the constitution was to limit arid restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur. (Lewis v. Widder, 99 Cal. 412; Cashin v. Dunn, 58 Cal. 581; Welch v. Strother, 74 Cal. 413; Dillon on Municipal Corporations, see. 137; McCrachen v. San Francisco, 16 Cal. 633 Bartle v. Des Moines, 38 Iowa, 414; Rice v. Des Moines, 40 Iowa/638; Grant Co. v. Lake Co., 17 Or. 453.) Plaintiff's demand is a fixed one, in the incurring of which the municipality had absolutely no discretion, and is payable out of the funds of any fiscal year. (Bradford San Francisco, 112 Cal. 537.) If the board of supervisors had refused to award the contract to plaintiff, a writ of mandate would have been granted to compel them to so award it. (Dillon on Municipal Corporations, secs. 466-68; Merrill on Mandamus, sec. 117.) While ordinary demands incurred by the municipality an only be paid out of the funds for the year in which they are incurred, the power of the board of supervisors to pay a valid judgment, which legally could be paid out of the funds of a subsequent year, is not refected. (Smith v. Broderick, 107 Cal. 648; 48 Am. St. Rep. 167; Stats. 1858, p. 233.)
Harry T. Creswell, City and County Attorney, and Wili-[ILLEGIBLE TEXT] Irvin Brobeck, Assistant, for Respondents.
The fact that appellant's claims now exist in the form of a judgment against the city and county of San Francisco, gives them no better standing, as claims against the treasury thereof, than they had before they were so dignified. (Smith v. Broderick, 107 Cal. 644; 48 Am. St. Rep. . 167; Clark v. Bowling, 3 N. Y. 216; 53 Am. Dec. 29D; Imlay v. Carpentier, 14 Cal. 173; Beits v. Bagley, -12 Pick. 580.) Each year's income and revenue must pay each year's indebtedness and liability. (Const., art. XI see. 18; San Francisco Gas Co. v. Brickwedel, 62 Cal. 41, Shaw v. Slailer, 74 Cal. 258; Schwartz v. Wilson, 75 CaI. 504; Mayrhofer v. Board of Education, 89 Cal. 14; 23 Am. St. Rep. 451; Sutro v. Pelis, 74 Cal. 337; 5 m. St. Rep. 442; MeBean v. San Bernardino, 96 Cal. 187, Von Schmidt v. Widber, 105 Cal. 151; Law v. Peo-87 Ill. 396; Weaver v. San Francisco, 111 Cal. 319.)
This is an application for a writ of mandate to compel the board of supervisors of the city and county of San Francisco to allow and order paid a judgment against the city obtained by plaintiff. Plaintiff had contracted with the city to furnish sabstence and supplies for the prisoners in the jails of the municipality for the fiscal year 1892-93, pursuant to the terms of section 69 of the consolidation act.
The supplies were furnished during the year. The demands of the plaintiff for the last three months were refused payment for lack of funds.
Plaintiff entered suit and obtained judgment, and, upon the refusal of the supervisors to order the judgment demand paid, he applied for this writ of mandate. The supervisors for answer showed that the general fund for the fiscal year 1892-93 was totally exhausted, and that the claim of plaintiff transformed into a judgment was payable solely out of this fund.
The reduction of the original claim to a judgment does not increase its dignity so as to authorize plaintiff to demand payment of it from any fund not subject to the primary demand. (Smith v. Broderick, 107 Cal. 644; 48 Am. St. Rep. 167.)
It is sought to distinguish this claim from the many which this court has been called upon to discuss, and to bring it within the principle of Lewis v. Widber, 99 Cal. 412. But, to the contrary, it is in all essential fea-tures identical with that considered in Pacific Undertakers v. Widber, 113 Cal. .201. The reasoning there set forth; completely covers the facts and the law of this case, and leaves little to be added. That hardships result from an observance of the law may be deplored; but this fact cannot afford reason for subverting the law or frittering it away.
The judgment is affirmed.
McFARLAND, J., and TEMPLE, J., concurred.