People ex rel. Alexander v. Swift , 31 Cal. 26 ( 1866 )

By the Court, Shafter, J.:

This is an application for a peremptory mandamus against the respondent, as President of the Board of Trustees of the City of Sacramento, to compel him to sign a certain warrant drawn by the Auditor on the Treasurer of said city for the sum of five hundred and seventy-four dollars and thirty-eight cents, for work done and materials furnished by the relator in repairing and improving the Police Court room of said city.

The referee to whom the case was sent to find and report the facts, has found that the services constituting the basis of the relator’s claim were not performed under any contract binding upon the city. The relator acted under the direction or on the suggestion of one, or perhaps two, of the three Trustees, but he was not employed by the Board as such. After the work had been performed, however, the Board of Trustees accepted the job as having been performed on the city’s account; and in the clear exercise of powers conferred upon them by the charter “ to make by-laws and ordinances not repugnant to the Constitution, of the United States or of the State of California” (Stat. 1863, p. 416), and “ to provide for all necessary public buildings, parks or squares necessary or proper for the use of the city” (Ib. 417), and “ to improve and take care of the real estate and personal property of the city” (Ib. 416), and “ to examine and liquidate all accounts against the city and to allow or reject the same or any part thereof as it is found legal or illegal” (Ib. 418), the Board passed an ordinance on the 17th of July, 1864, appropriating from the General Fund the sum of five hundred and seventy-four dollars and thirty-eight cents for the payment of the claim.

This subsequent ratification by the Board, within their powers, and according to the method of contracting pointed out in the charter, bound the city as effectually as an employment in advance would have done. (McCracken v. San Francisco, 16 Cal. 592; Zottman v. San Francisco, 20 Cal. 96.)

Subsequent to this ratification and on the 14th of August, 1864, a bill of items was made out by the relator, and presented to the Trustees, by whom it was allowed, and on the same day the claim was approved by the Auditor (Acts .1863, p. 421, Sec. 9), and thereupon a warrant for the amount, payable out of the General Fund, was drawn by the Auditor in favor of the relator.

The respondent justifies his refusal to sign this warrant, not only upon-the ground that there was no contract binding the city to pay the relator’s claim, a point already considered, but also upon the ground that the claim when presented for allowanee was not in the form prescribed by law, in that it did not refer to any law, order or contract authorizing it, and that the Board of Trustees exceeded their authority in allowing the demand without such reference.

This objection is not well founded in fact. It appears distinctly from the report and accompanying evidence that the relator’s claim, after it had taken on that shape by the ratification of July 17th, was presented to and allowed by the Board on the 14th of August, and that the written claim so presented contains a distinct reference to the ratifying ordinance and to the second section of the charter as authorizing it.

It is further objected that the claim originated in the year 1863, when the relator was authorized by one of the Trustees to do the work in question, and that it can be paid, under the charter, only from the revenues of that year. The objection is founded upon an anachronism. The claim had no existence as such prior to the 17th of July, 1864, at which date the Board of Trustees assumed it by ordinance, and the referee has found that at the time when the claim was allowed there was the sum of five thousand six hundred and fifty-two dollars and sixteen cents unappropriated in the fund on which the claim was charged by the ordinance and on which the warrant was drawn.

Let a peremptory mandate issue, according to the prayer.

Mr. Justice Sanderson expressed no opinion.