The decision in French v. Teschemaker adjudicated the constitutionality of the seventeenth section of the statute of April 22, 1863, and went no further.
The previous mandamus, sued out on the relation of " The Central Pacific Railroad of California" against the Board of Supervisors of the City and County of San Francisco, commanded said Supervisors to make the six hundred thousand dollars subscription called for by the Act of April 22d, 1863, and which had been voted at the special election held under the provisions of that statute; but did not dispose of the objections raised to the issuance of the bonds, which was a matter by no means identical with the question of subscription.
The right of the railroad company to demand of the Supervisors the act of subscription, was one thing; but their right to exact the issuance of the bonds was quite another thing.
Besides, the Act of April 4, 1864, excludes from the compromise any such bonds as were contemplated by the statute of April 22, 1863. The language is, " to compromise and settle all claims, etc., for cash or other security, in place of bonds claimed by said companies of said city and county, under an Act, etc ."
However large and unlimited the powers given by the Act of April 4, 1864, there is one kind of security clearly interdicted, to wit: Such bonds as the statute of 1863 called for; the compromise is to substitute something in their place and stead. How, then, can this statutory power be construed to authorize the issuance of the original bonds? (Starin v. The Town of Genoa , 23 N.Y. 9 Smith, 454, 455.
The Act of April 4, 1864, has been misconstrued; it does not relieve San Francisco from her subscription, but simply authorizes its liquidation " in cash or other security," in lieu of the bonds originally proposed.
The statute of April 22, 1863, is neither expressly nor impliedly repealed by the Act of April 4, 1864. Its existence, validity, and operative force, have been recently recognized by this Court in the decision as to the previous mandamus .
" Whenever two Acts can be made to stand together, it is the duty of a Judge to give both of them full effect. Even where they are seemingly repugnant, they must, if possible, have such a construction that one may not be a repeal of the other, unless the latter one contain negative words, or the intention to repeal is made manifest by some intelligible form of expression ." (Brown v. County Commissioners, 21 Penn. 43; Bowen v. Lease, 5 Hill, 226.)
The law recognizes interests and rights in the individual corporators of a municipality as beneficiaries, or cestui que trusts, separate and distinct from those of the legal entity, called the corporation, which stands merely as the trustee of these corporators, holding the legal title of the corporate property. (Wetmore v. Story, 3 Abbott Pr. R. 274-276; Wood v. Draper, 4 Abbott Pr. R. 323, 324; Redfield on Railways, 415, note.)
The proposition that the State has no power to divest vested rights, or to impair the obligation of contracts, applies as well to cases of municipal corporations as to individuals. (Grogan v. San Francisco , 18 Cal. 612, 613.)
JUDGES: Currey, J.
OPINION
CURREY, Judge
By the Court, Currey, J., on petition for rehearing.
The decision and judgment in this case was rendered early in September, eighteen hundred and sixty-four. About the tenth of that month, a written notice of such decision, as appears by proof before us, was personally served on the attorney for the respondents. On the thirteenth of the same month a petition was filed by new attorneys and counsel on behalf of respondents for a rehearing. Since then, and during the present term of the Court, the relators' attorneys have appeared and objected to the hearing and entertaining of this petition, on the ground that, as the case was originally commenced, tried and determined in this Court, the judgment rendered cannot be reviewed on petition for a rehearing.
By the amended Constitution, power was granted to the Supreme Court to issue writs of mandamus, certiorari and prohibition, and it was by authority of the constitutional provision referred to that this Court, upon proper proceedings instituted, assumed to act in the premises. Our judgment in the case was that of a Court of original jurisdiction, and for the correction of any error which we may commit in such cases the party aggrieved must pursue the course prescribed by the Practice Act in like cases arising in the District Courts, so far as may be. It is unnecessary to refer to the particular provisions of the Act specifying the course to be pursued in order to obtain a re-examination of a case by the same Court of original jurisdiction, after one decision made therein. The course prescribed by the statute has not been followed by the respondents in this case, and therefore the petition filed cannot be entertained.
It is therefore ordered that the petition for a rehearing be denied.