dissenting.—I dissent. The examination of the law bearing on this ease, which is comprised in statutes (I refer to part 3, title 1, chapter 3, articles 5, 6, and 7, of the Political Code, relating to the secretary of state, controller, and treasurer), shows, in tny judgment, that the failure by the secretary of state to render an account and make settlement, or his failure to pay into the state treasury any moneys belonging to the state, upon being required to do so by the controller, within twenty days after such requisition, so far as regards moneys which he has never inserted in any account rendered by him, is, under section 437 of the Political Code, an additional breach of his duty under the law, for which he is responsible. On such failure by the officer within the twenty days above mentioned, it is made the duty of the controller to state an account with such officer, charging him with twenty-five per cent damages, and interest at the rate of ten per cent per annum from the time of the failure. On this account so stated an action may be brought, and on the trial of this action a copy of the account is, by section 437, supra, made prima facie evidence of the things therein stated.
The statute of limitations did not commence to run in this case earlier than the failure of the secretary of state to account, say at the end of the period of twenty days above mentioned. In this case the requisition of the controller was made on or about the 1st of July, 1886, and the action was commenced on the 14th of August, 1886. The action was then commenced within thirty days after the end of the twenty days.
If it is urged that the defendant was already in default long before the demand by the controller was made, upon *580which default the statute of limitations had run, the reply is, that Melone held his office under the law (section 437, Political Code) which made his failure to account or pay over a new or additional breach, for which he was responsible. That the legislature was competent to enact such a law there can be no doubt. Melone took and held office with this power in the legislature. It was competent for the legislature to impose new and additional duties.
Í am of opinion that the judgment should be reversed, and the cause remanded, with directions to the court below to overrule the demurrer to the complaint.