46 Cal. 187 | Cal. | 1873
Application for a mandamus to compel the State Board of Examiners to allow the claim of the petitioner for the costs
The case turns upon the construction of the sixty-seventh section of the Act to provide “for the management and sale of the lands belonging to the State.” (Stats. 1867-8, p. 527.) In prescribing the mode of procedure against a defaulting purchaser of State lands, it provides for the taxation by the Court against the defendant of all expenses and cost of the proceedings, and the issuance of execution therefor. As we construe the section, the cost of publication of summons is to be included in the taxed costs, and, therefore, in the judgment entered against the defendant. The entire amount of the judgment is to be collected of the defendant by execution, if possible; but if sufficient property of the defendant be not found, and the execution be returned unsatisfied, and if the lands described be school lands, the cost of publication shall become a charge against the State, and shall be paid out of the General Fund.
It is claimed by the respondents that the judgment of the District Court is not conclusive as regards the amount allowed for costs of publication, but that it is the subject of examination by the Board of Examiners, and may be reduced or disallowed as other claims against the State. We do not think that the powers of the Board extend so far. Aside from these provisions of the statute, it would seem that the State, which was a party to the suits in which the judgments were rendered, and through its specially authorized agent procured their rendition, ought to be concluded by their terms, equally with the defendant. At all events, the requirement of the statute, as we construe it, is positive, that the cost of publication, as taxed by the Court, shall be paid by the State. This leaves to the auditing officers no discretion as to the amount for which the claim shall be allowed. It must still pass through the hands of the Board of Exam
It is not material whether any specific appropriation has been made by the Legislature for payment of claims of this character, or not. In either case the Board are required to audit the claim. (Political Code, Secs. 660, 663.)
We regret that we are forced to these conclusions. The demand disclosed by this record appears to have been grossly exorbitant, and we cannot avoid the conviction that the District Attorney was neglectful of the interest of the State which he represented when he procured and allowed this claim to be established against it; for though the judgments were formally against the defendants in the suits to foreclose, the claim was substantially and practically against the State. But we can only administer the law as we find it, leaving its defects to be remedied by legislative action.
Let a peremptory writ issue requiring the respondents to audit the claim of the petitioner for the amount of two thousand four hundred and sixty dollars.
Mr. Chief Justice Wallace did not express an opinion.
