delivered the following opinion, Sprague, J., concurring:
The applicant seeks to compel the Loan Commissioners of Santa Clara County, to satisfy his bonds in gold coin. It is not alleged in the complaint, that there is any gold coin in the loan fund; and by the agreed statement of facts, it appears that there never has been, and is not now, any gold coin in that fund. The Commissioners have no other fund under their charge, out of which the bonds might be redeemed, than the loan fund. They are not estopped, by *659their advertisement that they would pay those bonds, to say that there was no coin in that fund, for even if the bonds were payable only in coin, they would not be compelled to pay them unless there was coin in the fund. And besides this, the advertisement did not specify that the bonds would be paid in coin. The legal tender notes in the fund were, for aught that appears in the case, properly placed there, and no authority was conferred on the Commissioners by law, or by the order of the Board of Supervisors, when they ordered the legal tender notes to be transferred to that fund, to convert them into coin.
The case may also be disposed of on the question, as to whether the Commissioners are authorized to pay any money other than gold coin in satisfaction of the bonds. A part of the bonds .were issued on the 25th day of February, 1862 (the date of .the passage of the first Legal Tender Act), and the rest were issued at a subsequent date; and they were not expressly made payable in coin. They, therefore, may be satisfied with legal tender notes, unless there is something in the law providing for their issue, which requires payment to be made in coin only. We find no such provision in the statute. The statute does not require the “Loan Fund” to be composed exclusively of coin. The dividends, issues and profits of the stock in the railroad were required to be paid into the fund, and they do not necessarily consist of coin. At the time the bonds were issued, taxes were payable in coin ; but there is nothing in the statute providing for the issue of the bonds, which requires the taxes to be collected in that kind of money; nor is there any provision of that nature, either express or implied, in the contract between the parties to the bonds.
Mandate denied.
By Temple, J., Cbockett, J., and Walláce, J., concurring:
We concur in the judgment on the first ground discussed by Mr. Chief Justice Bhodes. As to the other question diseussed'by him, we .express no opinion.