The opinion
Mr. Justice Shafter delivered the following opinion, concurring specially,
in which Mr. Justice Rhodes concurred :
I concur in the judgment and in all the conclusions arrived at on the points discussed in the opinion of Mr. Justice San *280 DEESOir, and, with one exception, I concur also in the grounds on which those conclusions are respectively put.
I do not consider that the Marshal’s authority to make a gold assessment and to issue a warrant calling for gold had its source in the Act of 1864, requiring all dues to the public treasury of the State and of any city or county to be paid exclusively in the gold and silver coin of the United States. None of the dues named in the warrant could get into the municipal treasury, under any circumstances, as a place of lawful deposit. The contractor became and now is the city’s agent to collect the assessments; and as fast as collected, the law has and will continue to apply them in his hands in payment of the debt which the city owes him. For this reason I consider that the Act of 1864 has no application to the question. On the other hand, the authority to assess and collect in coin, comes, in my judgment, of the right secured to the city by the contract of paying in currency at one rate, and in gold at a lower rate, in its election. It was lawful for the city to make this contract, and from that fact I deduce the power to assess and collect in gold.
Mr. Justice Sawveb did not express any opinion.