222 P. 153 | Cal. Ct. App. | 1923
In this action the County of Los Angeles seeks to recover from the State of California the sum of $12,963.48 and bases its action upon the following facts: During the period between the ninth day of February, 1918, and the twenty-eighth day of December, 1920, a number of boys from the age of eighteen and under the age of twenty-one years were committed to the Preston School of Industry by the superior court of the county of Los Angeles *292 under the provisions of the juvenile court law of the state. (Stats. 1915, p. 1225.) No finding of the court was made in any of the cases concerning the ability of the parents or guardians of the wards, or as to the ability of the earnings of any of the wards, or of the estates belonging to any of them, to pay in whole or in part any of the maintenance charges at the Preston School of Industry. After commitment as aforesaid and without any orders made by the superior court of the county of Los Angeles directing such payment, the auditor of the County of Los Angeles drew warrants upon the treasurer of that county in favor of the State of California and the sum heretofore mentioned was accordingly paid to the state through the Preston School of Industry. Payments were made at the rate of $20 per month for the cost and maintenance of each ward.
On or about the sixteenth day of May, 1921, the County of Los Angeles filed with the State Board of Control of the state of California a claim for the refund of the said sum of $12,963.48, alleging that each and all of the various monthly payments to the state were illegal, and were made in the absence of the findings and orders for payment above referred to. This claim was disallowed by the State Board of Control. Action against the state was thereupon begun by the filing of the complaint setting forth the foregoing facts to which complaint the defendant demurred which demurrer was sustained without leave to amend. The matter is now on appeal to this court from the judgment of the trial court entered after sustaining the defendant's demurrer. In order to sustain its contention that a right of action existed on the part of the County of Los Angeles against the State of California, plaintiff lays down three propositions, — first: That the payments of the county moneys were illegally made to the state; second, a cause of action for money had and received has arisen against the state; and, third, an action against the state for money had and received is authorized by statute.
If any one of these propositions is faulty, then the action must fail and for that reason consideration need not further be given if such is found to be the case.
Were the payments illegally made to the state? We think this question can be answered by a consideration of the law *293 relating to the Preston School of Industry and the maintenance of wards committed thereto.
By an act by the legislature approved March 11, 1889 (Stats. 1889, p. 100), the state of California provided for the establishment of an educational institution to be designated as the Preston School of Industry to be located at Ione in the county of Amador. This act, however, made no provision for the maintenance or support of the wards committed to said school.
By the act approved March 26, 1895 (Stats. 1895, p. 123), the legislature provided in section 2 of said act:
"That for each and every person hereafter committed to either Whittier State School or Preston School of Industry, the county from which the commitment is made shall pay into the state treasury the sum of one hundred and thirty-two dollars per annum, and at that rate for each fraction of a year."
The juvenile court law as originally adopted provided in substance for the court making the commitment to direct the payment of the same amount per month. In 1919, economic conditions having undergone such a radical change and the sum of $11 per month being manifestly insufficient for the maintenance of any ward committed to either Preston or Whittier, the legislature amended section 11 to read as follows:
"Any order providing for the care and custody of a ward of the juvenile court may provide that the expense of support and maintenance of said ward shall be paid by the parent, parents, guardian of said ward or other person liable therefor, after citation thereto, or from the earnings, property or estate of said ward, and in such case shall state the amount to be so paid. If it is found, however, that the parent, parents, guardian of said ward, or other person liable therefor, are unable to pay or that the earnings, property, or estate, of said ward is insufficient to pay the whole expense of support and maintenance of said ward, the court may direct such additional amount as may be necessary for the maintenance and support of said ward to be paid from the county treasury of the county for the support and maintenance of said ward, the amount so ordered to be paid from the treasury of said county not to exceed, in the case of any *294 one ward, the sum of twenty dollars in any one month. . . ." (Stats. 1919, p. 476.)
These orders are valid for six-month periods. Provision is then made by the act for the keeping of books and reimbursements of the county by parents or guardians if found able, etc. On the part of the appellant and in order to establish the illegality of the state's claim it is necessarily argued that the making of any order by the superior court in relation to the maintenance of the wards being dealt with is purely optional or discretionary. Is this interpretation correct? The juvenile court law does not directly repeal the provisions of section 2 of the act of 1895 making it mandatory for the counties to pay to the state the sum of $11 per month for each ward committed either to the Preston School of Industry or the Whittier State School. Our attention has not been called to any portion of the juvenile court law which repeals the act of 1895 by necessary implication, and for the purpose of this decision we do not deem it necessary to refer to the act of 1895 further than to call attention to its mandatory provisions in which it is made obligatory upon the counties to pay the sum of $11 per month irrespective of any order or orders made by the superior court. In this connection we deem it proper to inquire as to the intent and purposes of the legislature in amending section 11 of the juvenile court law in 1919. It is a matter of common knowledge, a knowledge of which we think the court may take cognizance, that between the period of 1895, the date of the enactment of the law providing for the payment of $11 per month for the maintenance of the wards, and the year 1919, the cost of living and necessarily the cost of maintaining inmates at any of the state institutions practically doubled, and we think the legislature must have had this in mind in providing for the payment of a sum not exceeding $20 per month for each ward by the counties from which the wards were committed. There is another matter which must also be taken into consideration when determining the meaning of the word "may" as used in section 11 of the amendment to the juvenile court law and that is the uniform operation and effect to be given to such section. If the words contained in that section, relating to paying the state for the maintenance and support of wards committed to it from the different counties, are purely optional and discretionary, *295
then in that case it is possible for the larger counties, through the failure of the trial courts to exercise such option or discretion, to saddle the entire expense of maintaining their numerous wards upon the state, while other and smaller counties of the state where the commitments are few in number may exercise the option or discretion of providing for payment by the county, and thus a number of the counties of the state might be supporting their own wards and also contributing to the expense of maintaining wards committed from other counties where the option or discretion was either not exercised or if exercised determined in favor of the county. It is scarcely probable that the legislature intended by the words used to adopt a system that would have no uniformity of operation and leave the burden of maintaining the wards sent to the different institutions subject to any such shifting process. It seems to us the more reasonable conclusion that the legislature intended not to relieve the counties from the burden of maintaining their own wards but simply intended to limit the amount to a sum not exceeding $20. And also that the word "may" as used in section 11 of the amendment to the juvenile court law has a mandatory meaning and that the trial courts are not at liberty either to deny provision for the support of the wards committed to said institutions under the terms of that act or to shift the burden of maintaining such wards to other counties of the state by adding to the state's expenses in failing to exercise such power. In the Matter of Cencinino,
"The word 'may' as used in a statute or constitution is often interpreted to mean 'shall' or 'must.' Such interpretation always depends largely, if not altogether, on the object sought to be accomplished by the law in which that word is used. It seems to be the uniform rule that, where the purpose of the law is to clothe public officers with power to be exercised for the benefit of third persons, or for the public at large — that is, where the public interest or private right requires that the thing should be done — then the language, though permissive in form, is peremptory. As was said by the Supreme Court of the United States in Supervisors *296
v. United States, 4 Wall. (U.S.) 436 [18 L.Ed. 419, see, also, Rose's U.S. Notes], construing a statute of the state of Illinois similarly phrased to the provision in question here: 'What they [public officers] are employed to do for a third person, the law requires shall be done. The power is given, not for their benefit, but for his. It is given as a remedy to those entitled to invoke its aid.' (See, also, Hayes v. Countyof Los Angeles,
In Hayes v. County of Los Angeles,
"It is urged by respondent that the code, by providing that the board of supervisors may by order provide for refunding taxes, etc., paid more than once, made it optional with that body whether to do so or not, and that the board in this instance, having refused to refund, its action is conclusive upon the plaintiff. Where the public interest or private right requires that the thing should be done, then the word 'may' is generally construed to mean the same as 'shall.' (People v.Supervisors,
"In Supervisors v. United States, 4 Wall. (U.S.) 436. [18 L.Ed. 419, see, also, Rose's U.S. Notes], a statute of Illinois provided that the board of supervisors 'may, if deemed advisable, levy a special tax,' etc. Mr. Justice Swayne sums up the authorities on the question as follows:
" 'The conclusion to be adduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third *297 person, the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.' "
To the same effect is the case of Brenner v. Los Angeles,
[1] It thus appears that, while the word "may" is primarily and ordinarily a permissive term and not peremptory, nevertheless, when the rights of the public or of other persons — in this case the State of California — are dependent upon the exercise of the power conferred, the word "may" takes on the mandatory form and that the performance of the act provided for is neither optional nor discretionary upon the person or officer designated and authorized to perform the act.
[2] While the payments were undoubtedly irregularly made by the auditor and treasurer of the County of Los Angeles, does that necessarily vitiate the claim of the state for payment of expenses incurred by the maintenance of the wards committed to the Preston School of Industry by the superior court of Los Angeles County? We think not. It was the duty of the court of Los Angeles County to make the order, and under the law, as we read it, it was also the duty of Los Angeles County to provide for the maintenance *298 of its own wards and not to shift that burden upon the state or upon other counties of the state who, following the statute, had made provision for the support and maintenance of their wards. [3] This brings us to the consideration of section 1 of the act of 1893 (Stats. 1893, p. 57), which reads as follows:
"All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the State Board of Examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided."
There is no question of an express contract or obligation on the part of the state to refund or pay any money to the County of Los Angeles. It can only arise, if at all, by implication. Can it arise in this manner in this case?
The earliest case in the state of California upon this subject to which our attention has been called is that ofArgenti v. San Francisco,
Finch, P. J., and Hart, J., concurred. *300