Merriam v. Board of Supervisors

72 Cal. 517 | Cal. | 1887

Lead Opinion

Temple, J.

It is not necessary to consider the alleged error in allowing the amendment to the demurrer, as the only questions which we find it necessary to consider arise upon the general demurrer, which are the same in each demurrer filed.

The case appears to be clearly within the rule laid down in Linden v. Case, 46 Cal. 171. In other states, it is true, such suits have been maintained, although the rulings do not seem to be uniform upon the subject.

It is hardly claimed here that there is an excess of *519jurisdiction. It may be that facts exist which would justify the board in allowing the claims. We must presume that the board will do its duty, and we cannot assume that the claims will be allowed improperly. How can the plaintiff know, or this court decide in advance, that the claims will not be rejected for the objections alleged against them by petitioner?

Besides, as stated in Linden v. Case, supra, even if the board should allow them, the county and tax-payers are not without remedy. The auditor ought not to draw his warrant for an illegal demand, even although allowed by the board, and if he does so knowingly and willfully, he is personally responsible, and may be made to refund the money thus illegally paid. The same rule applies to the treasurer. The warrant drawn by the auditor would be no excuse for the payment of a claim known to be not a lawful charge. Then the district attorney is required to look after the affairs of the county, and it is' his duty, of his own motion, to commence suits to recover moneys illegally paid out. (Pol. Code, sec. 4086; County Government Act, sec. 8.) The members of the board would themselves be individually responsible for moneys willfully paid out without authority of law. They are trustees of the funds for certain specified purposes, and cannot, except by violating their oaths, allow them to be applied to other purposes. They act judicially, it is true, and will not be held accountable for mere errors, but they will not be excused on the ground that they have acted honestly merely because they do not steal the funds. If they willfully appropriate moneys for a purpose not authorized by positive law, they are liable civilly and criminally.

If other safeguards are needed, the legislature can provide them. It is not the province of the courts.

Judgment affirmed.

Thornton, J., Searls, C. J., and Paterson, J., concurred.





Concurrence Opinion

McKinstry, J., concurring.

I concur in the judgment, on the authority of the decision in Linden v. Case, 46 Cal. 171.





Dissenting Opinion

McFarland, J., dissenting.

I dissent’ and that Linden v. Case should be overruled.