199 P. 497 | Cal. | 1921
Lead Opinion
This is a mandamus proceeding to compel the payment by respondent, treasurer of Placer County, of a warrant for $2,231.48 issued by the county auditor upon a claim of petitioners allowed by the board of supervisors of the county. The matter was submitted upon a general demurrer to the petition. The only question presented *214 is whether the purported contract between petitioners and the county of Placer, made on behalf of the county by its board of supervisors, was in excess of the authority of such board and therefore void.
The material facts shown by the petition are substantially as follows: On March 5, 1918, more than one thousand parcels of land in Placer County which had been sold to the state for delinquent state and county taxes, the delinquency in such case being prior to 1912, remained unredeemed, and unsold by the state, and none of the assessments thereon had ever been canceled. The result was that Placer County had not received any of the money coming to it on any of said assessments. Under these circumstances the board of supervisors entered into the contract here involved with petitioners, neither of whom was an officer of the county. The contract is evidenced by a resolution of the board, and is as follows:
"It is ordered that C.E. Skidmore and A.L. Kramer be and they are hereby authorized to check deeds to the state, by the Tax Collector of Placer County, California, for delinquent taxes as shown in books of tax deeds numbered one to nine inclusive covering approximately 1000 deeds, that do not show redemption cancellation or sale on deeds or certificates of sale, and submit report covering each deed together with recommendations as to further disposition of same and submit lists for authorization from State Controller to advertise and sell as provided for by Section 3897, Pol. Code, and that in payment of such services the County of Placer will pay said Skidmore and Kramer, a commission, equal in amount to 50 per cent of Placer County's proportion of all moneys collected from and after this date, from redemption or sales of property, which has gone delinquent to the county, prior to the year 1912.
"Said 50 per cent commission is based upon the County's proportion of money received after this date, and applies only to money actually collected by the county.
"Payments to be made at the time of the regular monthly meetings of the Board of Supervisors for the amounts due on said date.
"No payments to be made, however, until the said Skid-more and Kramer have furnished an affidavit setting forth that they have checked the records at the U.S. Land Office, *215 the State Surveyor General's office, the County Recorder's office, and the County Auditor's office, and have submitted to the Board of Supervisors their report and recommendations as hereinabove provided, and until a certificate is received from the County Auditor showing the amount that has been paid to the county, as its share of the money collected from such redemption sales, of property examined and reported on by said Skidmore and Kramer, from date hereof.
"Dated: This 5th day of March, 1918."
The work so contracted for was fully completed by petitioners and the result of the action initiated by the supervisors upon the report of petitioners was that between March 5, 1918, and August 29, 1918, there was paid into the county treasury as Placer County's proportion on account of redemptions and sales of said parcels of land the sum of $4,462.96. Under the terms of the contract petitioners are entitled to a sum equal to one-half of this amount, and this is the sum specified in their warrant, which the treasurer refuses to pay.
It is conceded by learned counsel for petitioners that authority in law is essential to action by the board of supervisors, and that, such board is without authority in law to contract with private parties for the performance of duties which the law enjoins upon county officers.
[1] In so far as its express terms are concerned, we are not strongly impressed by the claim that this contract provided for the performance by petitioners of duties which the law enjoins upon officers of the county. According to such terms it appears to be confined, in so far as petitioners are concerned, to an examination of certain records in certain county offices, the state, surveyor-general's office, and the United States land office, with relation to the parcels of real estate sold to the state for taxes delinquent prior to the year 1912, which covered a period of many years, and a report thereon to the supervisors with their recommendations as to further disposition, accompanied by lists for authorization from the state controller for sale by the tax collector. And this was for the information of the board of supervisors, with a view to further proceedings by them. The county officers involved were those of the tax collector, the county auditor, and the county recorder. We find no statute enjoining upon any of these officers the duty to make in their *216
respective offices the examination and report thus called for, even if called upon by the supervisors to so do. An examination of the statutes prescribing their duties fails to disclose anything that can fairly be so construed. [2] Respondent relies in this connection upon subdivision 1 of section 4041 of the Political Code, the section prescribing the powers of the board of supervisors, which says they have power "to supervise the official conduct of all county officers . . . ; to see that they faithfully perform their duties, direct prosecutions for delinquencies, and, when necessary, require them to renew their official bonds, make reports and present their books and accounts for inspection." Manifestly, the provision here as to the power to require the making of reports is limited to such reports as the officers are required by law to make and to such other reports as are incidental to the general supervision given to the supervisors of the official conduct of the officers. The case of County of Humboldt v. Stern,
[3] In the determination of the question of the power of the board of supervisors to contract for the services here involved, we are brought to a consideration of the question of the functions and powers of the board with regard to property sold to the state for taxes. When property is thus sold under our system, the county does not receive its portion *217
of the tax until the property is redeemed or sold under direction of the state controller by the tax collector of the county. Until the year 1905, section 3897 left the matter of such a sale entirely in the hands of the state controller, providing for a sale by the county tax collector only on direction of the controller, and in so far as the law was concerned there was nothing for any other officer or for the county to do in the matter until the controller gave such direction. As is still true, every step subsequent to such direction, both as to redemption and sale, was prescribed by statute, and the public officer by whom it was to be taken designated. The supervisors had no function whatever to perform in the matter. While the law was in this condition, the case ofHouse v. Los Angeles Co.,
[4] Special objection is made as to the requirement of the contract that petitioners should include with their report their "recommendations as to further disposition of the property" involved, and should submit "lists for authorization from State Controller to advertise and sell under 3897 Political Code." As to the recommendations, which were, of course, simply an expression of the conclusion of the investigation whether or not, in view of the data, which they had collected as to title and value, sale proceedings could be initiated to advantage, we feel that it cannot fairly be held that the board was without power to have for its guidance the advice contracted for. Exactly what was meant by the requirement that lists for authorization from the state controller should be submitted we do not know, but we do not feel warranted in construing it for the purpose of invalidating the contract, as referring to the actual manual work of preparing the resolutions of the board or the applications to be made by the tax collector to the controller in the event that such application is directed by the board. These, of course, would be duties enjoined upon officials. We are inclined to the view that it means no more than that the petitioners must submit as a part of their report a list of the unredeemed properties as to which the board may properly take action.
[5] It has been suggested here that certain sections of the Political Code other than section 4041 enjoin upon certain county officers the duty to make reports which would furnish some of the required information. Consideration of *220 those sections has satisfied us that this may not fairly be held. In so far as those sections refer to reports of "debts" due the county, they can hardly be held to cover anything here involved, for after sale and deed to the state for the taxes there is no longer any "debt" or "indebtedness" due the county in the real sense of those words, or in the sense contemplated by these sections (see sec. 3716, Pol. Code). In so far as certain other sections are concerned, as, for instance, section 3728 of the Political Code, the reference is only to ordinary current reports which would not cover any period of time involved in the work here contracted for by the board. For instance, the report called for by section 3728 of the Political Code is an annual report to be prepared "from the 'assessment-book' of" the current year. It seems to us an undue strain of any of the sections to which reference is made, either in the opinion previously filed or in any of the briefs, to find therein authority for the proposition that in contracting for the work called for, the supervisors included work within the scope of the lawful duty of any county officer to perform.
[6] With the question of the wisdom of this contract in so far as the county was concerned, and especially with regard to the method and amount of compensation provided, the courts have nothing to do, in the absence of a claim of fraud or mistake. There is no pretense of any such claim in this matter. The question in this proceeding is simply one as to thepower of the board, and in view of the amendments to section 3897 of the Political Code, we see no escape from the conclusion that the contract was one within the power of the board to make and that the petitioners are entitled to the relief sought. It should be noted that this was the conclusion of the district court of appeal of the third appellate district, which court first heard the matter.
Let a peremptory writ of mandate issue as prayed in the petition.
Olney, J., Shaw, J., Lawlor, J., Lennon, J., and Sloane, J., concurred.
Dissenting Opinion
I dissent. The petition and argument upon rehearing have not changed my opinion in regard to the matter. In view of the fact that many of the *221 code sections cited in the previous opinions had not been discussed by the parties in their briefs, it was proper to grant a rehearing for the purpose of considering such arguments as might be presented in regard to their meaning or effect. Nothing has been presented, however, which changes my opinion in the matter, although it is true that there was an inadvertent statement in the opinion concerning the effect of section 3680 of the Political Code, it being the duty of the tax collector and not the assessor to mark upon the tax bills the words "Sold to the State." Omitting the words "and tax bills" thus inadvertently used, and also omitting the statement of facts which is contained in the main opinion, that opinion is as follows:
"The work so contracted for was fully completed by petitioners, and the result of the action initiated by the supervisors upon the report of petitioners was that between March 5, 1918, and August 29, 1918, there was paid into the county treasury as Placer County's proportion on account of redemptions and sales of said parcels of land the sum of $4462.96. Under the terms of the contract petitioners are entitled to a sum equal to one-half of this amount, and this is the sum specified in their warrant which the treasurer refuses to pay.
"If the action of the board of supervisors was unwarranted in law, in whole or in part, the petitioners are not entitled to the writ. The respondent claims that it was the duty of county officials to perform a very substantial part of the labor that the petitioners agreed to perform, and that the contract was therefore void, citing as authority for that conclusion,County of Humboldt v. Stern,