Order No. 582 was duly approved by the mayor on June 21, and became law on that day. On June 29 the acceptance of the Central Pacific was signified to the board, in due form, and on June 27 the supervisors appointed Messrs. Torrey, Bell, and Titcomb a committee to deliver to the Central Pacific the 400 bonds, with interest coupons attached. Nevertheless the mayor, Henry P. Coon, the auditor, Henry M. Hale, and the treasurer of the city, Joseph S. Paxon, constituting the Pacific Railroad Loan Fund Commissioners, refused to issue the bonds. The result was a petition for a mandamus directed against these persons individually, which developed into the case of People v. Coon.
Agreements in Mandamus Proceedings
The main legal points raised in this new litigation were three:
1. The conditions precedent to the issuance of the bonds under the act of 1864 had not been fulfilled, said the petitioner, in that the board of supervisors had not been compelled by final judgment of the Supreme Court to execute and deliver the bonds.
2. The second contention was that the railroad company could not call upon the supervisors to issue bonds on the city’s subscription unless the railroad should call in from other subscribers the whole amount of their respective subscriptions, or until, under the Act of 1863, a sum at least equal to the amount of the bonds should have been expended on the road from other sources. That either of these things had been done, the defendants vigorously denied.
3. It was also declared by defendants that the Act of 1864 had been misconstrued—that it did not relieve San Francisco from her subscription, but simply authorized the city to liquidate that subscription “in cash or other security” instead of in bonds. “We claim,” said counsel, “that the act authorized no more than the reduction of the amount of subscription and a change of the mode of payment to cash or other security in place of bonds. It does not authorize a donation of $400,000 or any other amount. In other words, it authorizes a subscription for any amount less than $600,000, payable in cash in place of bonds.”[59]
One has the feeling that at this stage of the proceedings, the first and third of these propositions were not well taken. It was too plainly the intention of the legislature to allow the city of San Francisco to withdraw from its subscription for a consideration, to permit weight to be given to technical points like these. On the other hand, it is very doubtful if the railroad had at this time either called in from other subscribers the whole amount of their respective subscriptions, or had expended on the road from other sources a sum equal to the amount of the bonds. The Supreme Court, however, did not make even this concession, but promptly issued a mandamus against Coon, Hale, and Paxon, commanding and requiring them to execute and deliver without delay, to the Central Pacific Railroad of California, the 400 bonds of the city and county of San Francisco, described in the ordinance before referred to.[60]
Further Litigation
Upon the issue of this mandamus, Coon, Hale, and Paxon signed the 400 bonds. According to a subsequent complaint by the railroad, the bonds so signed were presented by the president of the Board of Supervisors to William Loewy, clerk of the city and county of San Francisco, at a meeting at which a quorum of the supervisors was present. Loewy refused or failed to countersign. On September 27, 1864, a regular meeting of the supervisors was held, at which resolutions were offered requesting Loewy to countersign the bonds, and providing for the affixing of the seal of the city and county to the bonds when countersigned. These resolutions failed of passage, and instead a resolution was adopted requesting the clerk to deposit the 400 bonds with the county treasurer, which he did forthwith. The treasurer then refused to deliver the bonds to the railroad, and fresh proceedings were instituted before the Supreme Court, this time asking for a writ of peremptory mandamus commanding Loewy or his successor to obtain possession of the bonds, and to countersign and assist in delivering them to the Central Pacific; commanding the Board of Supervisors or their successors to call a meeting of the board, to notify the clerk of a time and place at which he might complete the countersigning in the presence of a quorum of the board; to cause the seal of the city and county to be affixed to the bonds; and to appoint a committee to deliver the bonds to the Central Pacific; and commanding the members of the Board of Supervisors who might be appointed such a committee, to deliver the bonds to the Central Pacific. It was obviously hoped to tie things down so that no further delay would be possible.