88 Cal. 510 | Cal. | 1891
This action was instituted by the district attorney of the plaintiff to recover from the defendants the sum of $416.25, money alleged to have been paid to them out of the plaintiff’s treasury without any authority of law, and twenty per cent damages for the use thereof, as provided in section 8 of the County Government Act. (Stats. 1883, p. 300.)
The court below gave judgment for the defendants on demurrer to the complaint, and the plaintiff appeals.
And as ground for equitable relief it is alleged that at the time the order above referred to was made the defendant Hasten appeared before the board of supervisors and stated to them that he did not know, but thought there might possibly be some money due the county from the state for the support of indigent persons by the county; but as it was very uncertain whether anything could be collected, and there were considerable risks in such undertaking, if the board would enter into an agreement to allow and pay defendants fifty per cent of all moneys collected, they would undertake the collec
In our opinion, the ruling of the court upon the demurrer was proper. It is settled law that where a county has legal business to be transacted, its board of supervisors may employ counsel, other than the district attorney, to transact the business, if in the judgment of the board the public interest will thereby be subserved. This is rested upon the ground that the district attorney may be incompetent, or sick, or absent from the county, or engaged in other business, so that he cannot attend to it, or the business to be transacted may be outside of the county. (Smith v. Mayor of Sacramento, 13 Cal. 533; Hornblower v. Duden, 35 Cal. 670.) Here the county had a claim against the state for its pro rata share of the money appropriated by the state for the support of aged persons in indigent circumstances. But the claim could only be enforced and the money obtained by preparing proper proofs and presenting them to the state board of examiners, and, after the claim should be audited and allowed, obtaining the controller’s warrant for the same.
This was business which might well have been supposed to require the services of a competent attorney; and to transact it the board of supervisors seems to have been authorized to employ counsel, other than the dis
The matters set up in the complaint for the purpose of obtaining equitable relief add nothing material to that instrument. The Yolo County case referred to was decided by this court on the 27th of September, 1888. (Yolo County v. Dunn, 77 Cal. 133.) The defendants, doubtless, knew of that decision before the 6th of July, 1889, and it would seem that the district attorney ought to have known of it. The statements alleged to have been made by Hasten to the supervisors were, that “he did not know, but thought there might probably be some money due the county from the state for the support of indigent persons by the county.” This might be true, notwithstanding he at the time knew of the decision in the case referred to; and in it and what follows we see nothing which necessarily deceived or misled the board.
The case of Scollay v. County of Butte, 67 Cal. 249, cited and relied upon by the appellant, is not in conflict with what has been said. On the contrary, it approves and reaffirms the rule declared in Smith v. Mayor of Sacramento, 13 Cal. 533, and in Hornblower v. Duden, 35 Cal. 670.
It follows that the judgment appealed from should be affirmed,, and we so advise.
Temple, C., and Vanclief, C., concurred.
The Court. —For the reasons given in the foregoing opinion, the judgment is affirmed.