Gilman v. The County of Douglas.

but simply that the contract between parties in such cases may be enforced according to its letter. But where parties make no distinction between the different currencies, the Courts are compelled to treat them as equal for the payment of all private debts. Hence, if nothing were said between the parties in this case as to the kind of money to be paid, a payment of the stipulated sum in greenbacks would unquestionably be held a complete satisfaction of the contract, and no action could, after the acceptance of such money, be maintained to recover the difference in value between it and any other kind of money. Is the case different when, as in this case, the creditor accepts treasury notes at par, in payment of a contract calling for coin? We think not. As already stated, all debts may be discharged in treasury notes, at their par value, where the parties have not contracted for a different currency. Where the difference in principle, if they contract for the payment of one kind, but the creditor afterwards accepts the other, the debtor tendering it as the equivalent of the currency agreed to be paid? In the first case the equality of the currencies is acknowledged at the time of entering into the contract; in the latter, when the depreciated money is accepted in the execution of it.

As the right to recover coin, in payment of a debt, depends entirely upon the action and contract of the parties, the creditor who accepts treasury notes, at their par value, in payment of a debt payable in coin, is precisely in the same position as if he had not contracted for coin in the first instance. The defendant tendered treasury notes in satisfaction of the warrants which were surrendered, and thus the contract between the parties was completely executed. Not, it is true, according to its letter or spirit; but the plaintiffs accepted a performance by the defendant, different in character from what the contract called for. Was not this a complete waiver of their right to subsequently claim damages for the failure to perform, in accordance with the contract? This is not like the case of an acceptance of a part of a debt in satisfaction of the whole. In that case it might be said there was no consideration for the agreement to relinquish what remained; and therefore the balance might be recovered, notwithstanding the agreement to the contrary. But here the law made gold and treasury notes the equivalent for

Humboldt County v. The County Commissioners of Churchill County.

the payment of this debt, unless the parties stipulated otherwise. They did at first so stipulate, and the payment might have been enforced in gold; but the subsequent acceptance of treasury notes, the defendant tendering them in satisfaction of the contract, places the plaintiffs in a position that they are estopped to deny that the contract was fully complied with. We take it to be law that the acceptance of a performance, differing from that contracted for, will estop the party so accepting from afterwards taking advantage of the failure to perform in accordance with the contract. Such is the position occupied by the plaintiffs.

The defendant did not agree that the notes should be taken at their actual value in the market, but tendered them in full satisfaction of the claim against it. Upon what principle then, can it be held that the plaintiffs could accept, and retain them at a value not assented to by the defendant, and recover the difference in value between them and gold? If the plaintiffs did not deem the payment in treasury notes a fulfillment of the contract, it was then their duty to reject them entirely and seek their remedy, if any they had, on the contract. That they protested against payment in paper, places them in no better position than if nothing had been said by them, as they afterwards voluntarily accepted it. They protested with the tongue, but assented by their acts. Judgment affirmed.

JOHNSON, J., did not participate in the foregoing decision.

HUMBOLDT COUNTY v. THE COUNTY COMMISSIONERS OF CHURCHILL COUNTY.

CONSTITUTIONAL CONSTRUCTION-DEBT OF CHURCHILL TO HUMBOLDT COUNTY. The second section of the amendatory Act of 1869, concerning counties, providing for the payment of $3,000 a year for five years by Churchill County to Humboldt County, (Stats. 1869, 88) does not conflict with Art. IV, Sec. 17, of the Constitution, which prohibits a statute from embracing more than one subject and matters properly connected therewith, which shall be expressed in the title thereof.

Humboldt County v. The County Commissioners of Churchill County.

TITLE OF STATUTE WHAT TO EXPRESS. It is only necessary, under the constitutional provision as to the subject-matter and title of statutes, (Const., Art. IV, Sec. 17) to express in the title the principal subject embodied in the law, while the matters properly connected therewith are not required to be mentioned. PRESUMPTION OF CONSTITUTIONALITY OF STATUTES. No statute will be annulled by a Court on the ground of unconstitutionality unless it be clearly in conflict with the Constitution.

STATUTORY CONSTRUCTION-IMPAIRING CONTRACTS. The statute of 1869, providing for the payment of $3,000 a year for five years by Churchill County to Humboldt County, (Stats. 1869, 88) does not interfere with warrants drawn upon the treasury of Churchill County and registered at the date of its passage, and is not for any such reason open to the objection of impairing the obligation of contracts.

EFFECT OF AUDITING AND ALLOWING A CLAIM AGAINST A COUNTY. The auditing

and allowing of a claim against a county gives the holder thereof no lien upon or right to any money in the treasury, or which may come into it; it is only the order or warrant of the auditor which gives that right. SPECIFIC APPROPRIATION OF COUNTY REVENUES. The payment of all ordinary claims against a county is subject to any specific appropriation and setting apart of the county revenues for any designated purpose, unless such appropriation interfere with some prior vested right to the revenue.

LEGISLATIVE POWER-PREFERRING CLAIMS. The Legislature undoubtedly has the

power to direct that certain claims against a county shall have a preference over all others which are not so situated as to give the holder a vested right to money in or to come into the treasury. RIGHTS OF COUNTY OFFICERS TO COUNTY REVENUE FOR SALARIES. The county officers of Churchill County had no such vested right to the money in the treasury for the payment of their salaries, as to prevent the operation upon such money of the Act of 1869, (Stats. 1869, 88) providing for the payment of certain money yearly by Churchill to Humboldt County. DUTIES OF COUNTY COMMISSIONERS-DISCRETION.

Under the Act providing for the payment of $3,000 a year for five years by Churchill to Humboldt County, (Stats. 1869, 88) the county commissioners of Churchill County had no discretion respecting the appropriation of the money.

MANDAMUS-COMMAND OF WRIT. Where a discretion is to be exercised by an officer as to the manner in which an act may be done, or the act depends upon his judgment, a writ of mandate directed to him will not control his discretion, but only command him to act without in any way interfering with the manner of his action; but where, on the contrary, a specific act is required to be done and no discretion given, the writ may command the doing of the very act itself. MANDAMUS-PREVIOUS Demand WHEN NECESSARY. When the performance of the duty sought to be enforced by mandamus is of a character that could not be expected to be performed until demanded, the writ should not issue until demand made; but when the law unconditionally requires the doing of the specified act, no demand is necessary.

Humboldt County v. The County Commissioners of Churchill County.

MANDAMUS-OMISSION OF DUTY BY COUNTY COMMISSIONERS. Where county commissioners were by statute absolutely required to set apart certain funds in the treasury for a specific purpose, and refused or neglected to do so: Held, that mandamus was the only plain, speedy and adequate remedy to compel them to do their duty.

JUDICIAL POWER AS TO STATUTES. No Court has a right to annul or set aside a statute except upon constitutional grounds, and no inquiry can be made as to any alleged misunderstanding between legislators respecting its adoption, or even fraud in procuring its passage.

STATUTES THE EXPRESSION OF FREE LEGISLATIVE WILL. A statute must be taken by Courts to be the expression of the free will and wish of the Legislature, whatever may have been the means employed (to secure its adoption, and irrespective of any agreement or understanding had between members.

This was an original application made in the Supreme Court for a writ of mandamns. It was made in behalf of Humboldt County against J. M. Sanford, James S. Gregory and J..S. Hall, county commissioners of Churchill County. In response to the petition, which was filed February 21, 1870, an alternative writ was issued, to which the defendants made answer, tendering the various issues decided in the case, and also setting up that there was an understanding and agreement between Churchill and Humboldt counties, upon which the statute of 1869, referred to in the opinion, was predicated. This agreement was to the effect that, if forty-three miles of the Central Pacific Railroad track were transferred from Humboldt to Churchill County, by means of the changes in the county boundaries made by the statute, then Churchill County was to pay Humboldt County $3,000 a year for five years; but if less than forty-three miles were transferred, then the amount of payment was to be proportionally less; and that, as a matter of fact, only twenty miles of track were transferred, and all that should be paid was about $1,400 a year for five years.

P. H. Harris, District Attorney of Humboldt County, for Petitioner.

I. Mandamus is the proper and only remedy. The duty sought to be enforced, viz: the setting apart of revenue, is purely ministerial. And if it cannot be enforced by mandamus, the abuse is without remedy. The commissioners alone have the power to set

Humboldt County v. The County Commissioners of Churchill County.

apart revenue. If they decline, the Court, by writ of mandate, may compel them to act.

II. When, as in this case, the law enjoins upon a board or officer the performance of a duty which concerns the public, no demand is necessary. But mandamus will lie, upon failure to act within the prescribed time. (Moses on Mandamus, 125; 37 Penn. 237, 277.)

J. M. Gray and Clayton & Davies, for Defendants.

I. The second section of the statute is in violation of Art IV, Sec. 17, of the Constitution. Two distinct subjects are embraced in it, totally disconnected, and the matters embraced in the second section are not even remotely referred to in the title.

II. The Act is also repugnant to the Constitution of the United States, which forbids the passing of any law impairing the obligations of contracts. All claims against the county of Churchill which had been audited and allowed, and for which warrants had been drawn and numbered, would be impaired if the revenues, instead of being apportioned, as by law required, when they accrued, should be diverted to the payment of a subsequent claim. Such claims were contracts, entered into with the understanding that the county revenues would be apportioned as required by law, and that they would be paid in accordance with the numbers of the respective warrants as the money came into the particular fund chargable. If Churchill County could be compelled to set apart the money claimed, without regard to the various funds created by law, then clearly Humboldt County would be rendered a preferred creditor, and the rights of other creditors would be impaired and postponed, and might be rendered valueless. (People v. San Francisco, 4 Cal. 127; Lafarge v. Magee, 6 Cal. 650; Robinson v. Magee, 9 Cal. 81; Smith v. Morse et al., 2 Cal. 504.)

III. The alternative writ, if properly issued, should only have commanded the commissioners to act, and in commanding the setting apart of a specific sum, was irregular. And as the peremptory writ must follow the alternative, the peremptory must in