Soher v. Supervisors of Calaveras County , 39 Cal. 134 ( 1870 )

Rhodes, C. J.,

delivered the opinion of the Court:

There is no necessity for the discussion in this case of the constitutional question which has been argued with much force by the petitioner’s counsel—the question whether the Legislature has the power, notwithstanding the prohibition of the Constitution of the United States, and of the State, to require a bond creditor of a county to accept, in lieu of his bonds, new bonds payable at a later date, and bearing a lower rate of interest than those he holds. The Act of 1868, to fund the indebtedness of Calaveras County (Stats. 1867-8, p. 301), does not expressly repeal the Funding Act of 1861 (Stats. 1861, p. 364), nor do we find anything in the Act of 1868 that repeals the former Act by implication. It is provided in the Act, that upon a surrender of the bonds of the county by a bond-holder, the Fund Commissioners shall deliver to him an equal apount of bonds issued under the provisions of that Act; but there is no provision requiring the bond-holder to make such surrender, nor does the Act, in order to enforce such surrender, deny or withhold any remedy which he then possessed, for the satisfaction of his bonds. The Act of 1861 was not compulsory on the creditors of the county—did not require them to surrender their evidences of indebtedness, nor forbid the county to pay its debts, if the creditors should refuse to accept the bonds; and the Act of 1868 is not more stringent in this respect. The Fund Commissioners are required to prepare bonds, equal in amount to the bonds of the county then due and unpaid, and certain other indebtedness, not exceeding a specified amount; but whether they will be accepted in place of the former bonds, depends upon the election of the .creditors. The intent to make the acceptance of the new bonds compulsory upon the creditors, ought not to rest upon ■doubtful implications, but should be manifested by clear and unmistakable language. The Act of 1861, in our opinion, is in force in zespect to outstanding bonds issued under its provisions, and their payment must be provided for, as required by that Act. lío provision was made for the payment of interest beyond January 1, 1868, when the principal of the bonds became due; and, according to the authority of Beals v. Supervisors of Amador County (28 Cal. 449), no interest accrued after that date.

Peremptory mandate ordered, requiring the Supervisors to levy a tax, as provided for in the fifth section of the Act of May 14, 1861, to provide a sinking fund for the redemption of said bonds.

Sprague, J., expressed no opinion.