Babcock v. Goodrich

By the Court, McKinstry, J.:

Application for a writ of mandate to the Auditor of Alameda County, commanding that officer, to draw his warrant, in favor of the relator, on the Treasurer for the amount of an account allowed by the Board of Supervisors. The case was submitted on demurrer to the petition, and on the plaintiff’s motion for judgment upon the pleadings. We think the complaint is sufficiently certain in the particulars to which is addressed, the special demurrer for uncertainty.

In support of the general demurrer, respondent’s counsel urges that the relator has mistaken his mode of redress; that he has “a plain, speedy and adequate remedy” by action against the Auditor for neglect of official duty.

The cases of Goodwin v. Glazier and Fulton v. Hanna, 10 Cal. 333, 40 Cal. 279, are not precisely in point, and we are not disposed to extend the doctrine of those cases. There is no strict analogy between the warrant of the Auditor and an execution on an ordinary money judgment. If the Board of Supervisors has not exceeded its powers, the relator is entitled to the warrant which, it must be presumed, will be paid on presentation, or in due course according to the date of its registration (Pol. Code, 4,076). The drawing of the warrant is an act “specially enjoined by law.” To supersede the remedy by mandamus, a party must not only have a specific, adequate legal remedy, but one competent to afford relief upon the very subject matter of his application (Fremont v. Crippen, 10 Cal. 211). It is clear that an action for damages against the Auditor, for neglect of duty, would not be equally convenient, beneficial and effective as the proceeding by mandate, since it would not compel him to do the specific act which the law requires him to perform. There is no force in the objection that the complaint should show that there was money in the fund. The duty of the Auditor does not depend upon the fact that there is money in the treasury (Sec. 4,076).

Nor. can the point be sustained that the account, as presented to the Board of Supervisors, did not give “all the items of the claim,” as required by Section 4,072 of the Political Code. The account refers to the contract and is accompanied by the certificate of the architects, as required by the terms of the contract. The liability, if any, arose upon the certificate of the architects selected by the parties, and we regard the form of the account as a substantial compliance with the statute.

-It is urged as an objection, under the general demurrer, that the complaint does not aver thab the “ county owns ” block 22, on which the jail was to be erected. This'is not the proceeding in which to try the title to land, nor is it necessary to decide whether the county authorities have power to build on land in which the county has not the fee. The complaint shows that the relator was placed in possession by the county, and' has partially erected the building on the land described.

The next objection in support of the general demurrer is that the order of the Board allowing the account, did not specify the fund on which the warrant was to be drawn. The statute only requires the Supervisors to examine, settle and allow accounts, and “ to order warrants to be drawn on the county treasurer therefor,” etc., while the warrants themselves “must specify the liabilities for which they are drawn and when they accrued.” (Political Code, 4,046-7.) Sections 4,144 and 4,123 do not impose on the Supervisors the necessity of specifying in each order the fund on which the order is to be drawn. The Auditor is sufficiently informed on what fund to draw, when the order of the Board specifies the liability for which it is to be drawn.

It is said by respondent’s counsel, that the contract annexed to and forming part of the complaint, is void, because it does not provide that eight hours shall be a day’s work under it. The Political Code (Sec. 3,245), provides that eight hours’ labor constitutes a legal day’s work in all cases where the same is performed under the authority of any law of the State, and directs: “A stipulation to that effect shall be made part of all contracts to which the State or any municipal corporation therein shall be a party.” It is riot made a consequence of an omission to insert this stipulation that the contract shall be void, and the omission, therefore, does not operate a forfeiture of the rights of the parties under the contract. If a county shall contract directly with the laborer, it will not be contended that the former may refuse to pay the latter his hire, because he had worked too many hours, or had not, by express stipulation, limited the time which should constitute a day’s work. The law was passed for the protection of the laborer; an officer of the county cannot refuse to carry out a contract because of an. omission which renders the contract more favorable to the county. Again, it is said that the contract is void, because it is a contract both for labor and materials. The sections of the Political Code cited, seem to apply exclusively to the buildings of the State. (Sections 3233-4.) But if they do not, the Act of April 1st, 1872, which must prevail (Political Code, 4478-9), authorizes a Board of Supervisors to erect a building by contract.

Notwithstanding subdivision 9 of section 4046 of the Political Code, expressly confers the power, it is contended that the Board of Supervisors cannot build a jail, because it has no power to levy a tax for the purpose. We attach little consequence to the circumstance that several Acts of the -Legislature have been passed, authorizing specially a tax for building court-houses and jails. We are discussing a question of mere power, not whether the power may be discreetly exercised, and such special laws may have been passed to relieve the Supervisors of the responsibility of levying a larger tax than that to which the people of a county had been accustomed.

In addition to the express power to .erect county buildings the Board has authority “ to levy such tax annually on the taxable property of the county as may be necessary to-defray the current expenses thereof, not exceeding $1 for every §100 of value for any one year, and to levy such taxes as are required to be levied by special or local statutes.” In our view it is not necessary to discuss the question whether the power tb build a jail existing, the power to levy a special tax is “ necessary to the full discharge of the duties of the chief executive authority-of the county government.” (Pol. Code, 4046, sub. 26.)

Is the expense of building a jail a portion of the current expenses of the year ? We think the expression “ current expenses of the year” is equivalent to “the expenses of the current year.” The adjective can only be made to qualify the latter word, so that, in the absence of any provisions of a statute authorizing special or extraordinary taxation, the Board has power to levy a tax (not exceeding $1 on the §100) sufficient to cover any expense they have power to incur as a part of the expenses of the year, or the expenses of the current year. It is claimed, however, that the intention of the Legislature, that a tax should not be levied to cover the erection of public buildings is evidenced by the circumstance that the law specially authorizes the Board to levy a tax for certain other purposes. In section 4046 Political Code, there are twenty-six subdivisions, specifying the powers conferred upon the Board of Supervisors. A careful examination of these satisfies us that the money necessary to carry into effect all of the powers, with certain exceptions, is to be derived from the general tax for “current expenses,” while in the excepted cases the Board is empowered to levy a special tax. Thus the expense of dividing the county into districts; of elections; of providing, in certain cases, rooms for county purposes; of purchasing necessary property, real and personal; of erecting and furnishing public buildings; of adapting to the county the sanitary regulations applicable to Ban Francisco or Sacramento; of providing for the county printing, and furnishing the officers proper books and stationery, and of adopting a county seal, are payable out of the general current expense fund. But, for reasons satisfactory to the law-makers, the power to fix the amount to be raised for laying out roads, etc., was retained by the Legislature, while the Supervisors were authorized to levy a hospital tax not exceeding a certain sum per capita or per centage ad valorem, and were also empowered to levy a special tax to be applied to the destruction of wild animals. This construction gives effect to every portion of the section, and, in connection with other provisions of law, clothes the proper officers of a new county with full power to carry the local government into efficient operation. It would certainly have been a strange omission had the codes, which purport to provide a complete system, failed to furnish the means by which the important power of erecting necessary county buildings can be brought into action. We do not think the. codifiers have neglected to provide for the case. ,

Our answer to- another objection urged against the complaint is, that a contract made with the Supervisors, by which it is stipulated that the other contracting party shall receive his compensation in county warrants, is, in legal effect, a contract that he shall be paid in money. In any event, he can only get warrants which, on presentation to the Treasurer, are to be paid or registered.

It is also objected that San Leandro is the county seat. If we take judicial notice that San Leandro was the county seat, we also take notice that it may have been removed to Oakland. The petition avers that it has been legally removed, and the demurrer admits the fact. Even a special demurrer to this portion of the complaint would be overruled. To set out all the acts necessary to a removal would render the pleading very voluminous, without accomplishing any useful end.

Again, it is urged that, on its face, the .contract is not the contract of the Board or of the county. The complaint alleges that the Supervisors, acting for and on behalf of the county, entered into a written contract,' and that “said contract was signed by Isham Case, Chairman of the said Board, under authority from said Board, and was executed in pursuance of orders and determinations of said Board, in that behalf duly given and made.” (Code Civ. Proc. 456.) The same answer applies to the points that the petition does not aver that there was money in the treasury, or that any tax for a jail had been levied, or that debts and liabilities had been created when the account was allowed, which, added to the salaries of the officers, etc. equaled the aggregate revenue. The complaint alleges that the orders allowing the account, and directing the Auditor to draw his warrant for the same, “were duly given and made.” This was the only averment necessary as to the jurisdiction of the Board. The demurrer should be overruled.

The last objection considered above is also taken, perhaps, by special answer. The answer alleges: “Before the contract mentioned in the complaint was entered into, the county of Alameda had already incurred liabilities for its current expenses, etc. which equaled all its revenues,” etc. The statute (Pol. Code, 4070) reads: “The Board must not for any purpose contract debts or liabilities, except in pursuance of law, or under ordinances of their own, adopted in accordance with the powers herein conferred; and whenever debts and liabilities have been created, which, added to the salaries of county officers and other estimated liabilities fixed by law for the remainder of the year, equal in the aggregate the revenue of the county for current expenses, no further allowance of any accounts must be made.”

Passing the questions suggested by differences in the language employed in the statute and in the answer, we remark : The word revenue, as used in the section recited, cannot mean the actual money which shall be received in the county treasury. To give the word this interpretation would render it impossible for the Board to comply with the direction of the statute, since the amount can never be ascertained until all the assessments have been collected and paid into the treasury. In view of the context, it is no forced interpretation to say that it is the estimated revenue which the lawmakers had in contemplation. Subdivision 13, of section 4046, only requires that the Supervisors shall levy such tax as may be necessary, not exceeding one dollar on every hundred. They are not commanded or directed to make a record of their estimate of what the levy will probably produce. In performing the duty of levying the tax, all of the Supervisors should use their best judgment in estimating what sum it will be necessary and proper to collect, and may (and it is believed ordinarily do) make an allowance for delinquencies in the collection. But this is a moral obligation, addressed to the consciences of the individual members, and the statute itself does not make the estimate, made ivhen the tax was levied, in any sense conclusive upon the Board. The opinion of the members on that subject may vary as the year progresses, and as the payments are made with greater or less promptness. It is their estimate of the revenue at the time an account is presented for allowance which must control the action of the Board in allowing or refusing to allow it. Thus the Supervisors are clothed with a discretion quasi judicial, which, like all discretion, may be abused. But in the absence of charges of fraud, the Courts will not review their action, upon the ground that they were mistaken in a particular instance. Certainly the Auditor, whose duty is to draw warrants, when ordered to do so by the Supervisors (except where the latter have exceeded their powers), cannot assume to set up his judgment against theirs in respect to a matter which the law leaves to their wise and honest discretion. It is not necessary to decide that there can be no debts or liabilities against a county, in the sense of the section quoted, except such as have been allowed by the Board of Supervisors. But it is plain that the Board is the real auditing power under the statute, and not the officer who bears that name. The Board must determine what claims constitute debts and liabilities. And the Auditor, whose duties, as we have seen, are merely ministerial, cannot impose upon this Court, in an action entirely unfitted for such inquiry, the task of trying disputed questions of fact between the county and third persons, who are not parties to this proceeding.

The charge contained in the answer, that the relator paid Hall & Cox to withdraw their bid, does not constitute a defense to this writ. The respondent is not the general representative of the county, and can refuse to draw the warrant only in case the Board has exceeded its jurisdiction. If a fraud has been practiced on the county by the relator, or by the relator and another, the county, perhaps, may claim the contract to be invalid. But the respondent cannot refuse to perform a ministerial act because he suspects or believes he can prove facts, the evidence of which rests in pais, and must be produced in a direct action in which the question is properly involved, to enable a Court to declare the contract void or voidable.

The remaining averments in the answer simply raise issues of law, which have already been sufficiently considered.

Let the writ issue.