UNDERHILL v. THE TRUSTEES OF THE CITY OF SONORA, 17 Cal. 172

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. We think the demurrer in this case was improperly sustained. The complaint set out the bond sued on; avers the defendant to be a corporation; that the corporation made and delivered the bond on good consideration; that this was done under an ordinance passed by the proper agents of the corporation, having authority for that purpose; and that the defendant has failed to pay. This is enough, prima fade, to show a liability on the part of the corporation.

We see no more necessity for a plaintiff suing a corporation on a note or bond, to set out the ordinance which empowered the corporate authorities to make the contract, than for a plaintiff suing a principal on a note executed by attorney to set out in the complaint the power of attorney. ISTor is it necessary to set out the vote or other proceedings of the corporate agents, nor to give any further description of the agents than that given in the complaint.

The bonds themselves are set out or minutely described, and these show by whom they were executed; and the persons signing them are averred to be the agents of the corporation, duly empowered for that purpose. 2. The important question is that arising under the Statute of Limitations. The bonds upon their face are payable at dates which show a bar under the General Statute. But the plaintiff, to avoid the bar, sets up several Acts of the Legislature applicable to this corporation, which he alleges are sufficient to take the case from the influence of the statute.

The bonds are dated twenty-fifth of March, 1853, and due two years afterwards. The first of these acts was passed March 9th, 1855, and is entitled “An Act to reincorpórate the city of Sonora; ” at this time the bonds were not barred. The tenth

section provides that the Trustees shall have power, and it shall be their duty, semi-annually to raise, by tax on the real and personal property within the city, a revenue of one per cent., etc.; and

section sixteen provides: “ In case the public debt is not liquidated at the expiration of three years, the Trustees shall have power to levy a sufficient tax, in addition to the one per cent, authorized in

section ten, to pay the outstanding debt.” The second

section of the Act of 1858 is in the same words, except that six years are specified instead of three. It is contended that this is not only a recognition of the existence of these debts by the legislative authority, but a provision for their payment. This provisional office of levying the tax, being a public duty in the officers of the corporation, cast upon them by the public law, carried with it a legal obligation to discharge it, which might doubtless have been enforced by appropriate proceedings.

It afforded, in other words, a remedy to the bondholder for the enforcement of the claim as a valid money obligation. These acts were passed at the instance of the corporators, according to the averments of the complaint. With the assent of the city, this legislative recognition and provision are equivalent to the same acts done with full authority by the corporation. Indeed, we suppose they would be sufficient without such assent, by virtue of the control which the Legislature possesses over these municipal bodies. The legislative acts, then, recognize the debt, and make provision for its payment.

This is enough to withdraw the case from the operation of the statute. It is equivalent to a trust deed by the city, setting apart property out of which the money due was to be paid at a given time, if not sooner paid, upon a claim acknowledged to be an outstanding debt; and we cannot conceive of any principle of law or justice which would hold the claim to be barred by the statute merely because the creditor waited after this for his money. The plea of the statute, if successful, would, under these circumstances, be nothing less than

an act of unqualified repudiation of a just and honest obligation, to the payment of which the faith and honor of the defendant are pledged. The respondent suggests, in justice to the city, that she is equitably entitled to set up this defense. We think the equities of the case, if there be any, of which we cannot now judge, must be set up in some other form. Judgment reversed, and cause remanded.