91 Cal. 367 | Cal. | 1891
This is an application for a writ of habeas corpus.
The petitioner alleges that he is unlawfully restrained of his liberty by the sheriff of the city and county of San Francisco.
Section 144 of the Code of Civil Procedure is as follows : —
“ Sec. 144. If suitable rooms for holding the superior*368 courts and the chambers of the judges of said courts be not provided in any city and county, or county, by the supervisors thereof, together with the attendants, furniture, fuel, lights, and stationery sufficient for the transaction of business, the courts, or the judge or judges thereof, may direct the sheriff of the city and county, or county, to provide such rooms, attendants, furniture, fuel, lights, and stationery, and the expenses incurred, certified by the judge or judges to be correct, shall be a charge against the city and county treasury, and paid out of the general fund thereof.”
The board of supervisors of the city and county of San Francisco having failed to provide suitable apartments, furniture, stationery, etc., sufficient for the transaction of the business of department 11 of the superior court of said city and county, said department 11, Hon. James M. Troutt presiding, made an order that the sheriff of the city and county of San Francisco provide such apartments, furniture, stationery, etc., sufficient for the transaction of the business of said department of the court. The sheriff complied with the aforesaid order, and incurred certain expenses in the sum of $1,867.42 therefor, and said expenses were certified to be correct by said James M. Troutt, judge of department 11 of the superior court of said city and county. Thereafter an order of court was made declaring that such expenses were a charge against the treasury of the city and county of San Francisco, and it was further ordered and adjudged that the treasurer of said city and county forthwith pay out of the “general fund” the aforesaid bills and expenses. A copy of this order was served upon the petitioner, treasurer of the city and county of San Francisco, and he refused to comply with its terms, whereupon such proceedings were had that he was adjudged guilty of contempt, and ordered committed to the custody of the sheriff.
In the solution of the question as to the legality or illegality of petitioner’s imprisonment, it is only necessary to determine whether or not the court had any au
This demand being a charge against the city and county treasury, to be paid out of the general fund, can the payment thereof be enforced against the county treasurer by proceedings in contempt ? In other words, had the court the power to order the petitioner to pay this money from the general fund of the treasury ? If it had the power to make the order, it had the power to enforce that order by contempt proceedings; but we find nothing in the provisions of the section giving the court any such power, and it certainly had not the inherent power to make the order, for such power was not a necessary incident to the court in order that its previous acts might fully and truly accomplish the results intended and desired. The demand had ripened into a legal liability against the city and county, and remedies were not lacking to enforce its payment; again, the treasurer was not an officer of the court, and in no way was he a party to the proceedings. Under the above circumstances, the court certainly had no inherent power to make an order placing the petitioner in the unpleasant and perilous position of either paying out the people’s money or be punished for contempt of court. Under the provision of the code the court does not even audit the demand; that act is performed by the
We conclude, therefore, that the court neither had inherent power nor power granted by statute to make the order requiring petitioner to payout the city and county’s money upon the certified demand, and that a refusal to obey such order did not render the petitioner amenable to proceedings in contempt.
Let the petitioner be discharged.
Harrison, J., Paterson, J., Sharpstein, J., McFarland, J., and De Haven, J., concurred.