Majority
p. 426HOME OF CARE OF INEBRIATES v. REIS, Treasurer. No. 13,741; August 6, 1891. 27 Pac. 310.
Headnote
Mandamus—Setting Aside Submission.—Where, on an application for a writ of mandate against a city treasurer, the supreme court, after the cause is submitted, concludes that the constitutionality of certain acts must be determined, which questions have not been argued, the submission will be set aside, and an opportunity for argument thereof will be afforded.APPLICATION for writ of mandate by the Home of the Care of the Inebriates against Reis, as treasurer of the city of San Francisco.
Tilden & Tilden for petitioner; John H. Dwist and George Flournoy, Jr., for respondent.
This cause was submitted upon an argument which raised but a single question, viz., whether the act of the legislature, approved March 17, 1876, was repealed by
p. 427
the act of 1889. Upon mature consideration, the court has concluded that a writ of mandate cannot be awarded without determining other questions, viz.: The constitutionality of the acts of April 7, 1870, and March 17, 1876; and whether the treasurer of San Francisco, in view of the provisions of section 82 of the consolidation act, can be compelled to pay any unaudited claim. These questions ought not to be decided without argument, and the submission of the cause is therefore set aside, in order that such argument may be had.