129 P. 974 | Cal. Ct. App. | 1912
This is an appeal from a judgment rendered against plaintiff, after order sustaining defendant's demurrer to plaintiff's petition for a writ of mandate. The record affirmatively shows that no application for leave to amend was made.
Plaintiff filed its petition against defendant, as treasurer of the county of San Benito, asking for a writ of mandate to compel defendant, as such treasurer, to pay the state treasurer the sum of $1,460, claimed to be due the state on account of the commitment to, and maintenance in, the Sonoma State Home, of certain children from said county.
The second amended petition was filed August 5, 1910. A demurrer thereto was filed October 21, 1910, which raised the point of insufficiency of the facts stated to entitle plaintiff *626 to any relief, and also the capacity of plaintiff to bring the action.
Subsequently an act was passed, amending certain sections of the Political Code relating to the subject matter of the action, which took effect in April, 1911.
The demurrer was sustained May 10, 1911.
Appellant contends that the complaint was not demurrable under the law as it stood when the action was commenced, and also that the sufficiency of the complaint and the capacity of plaintiff to sue must be tested by the law as it stood after the taking effect of the amendment in April, 1911.
We shall first examine the complaint in the light of the law as it stood when the action was commenced and the demurrer filed.
Section 2192 of the Political Code, after providing for the commitment of feeble-minded or imbecile persons to the home by a superior judge, and providing that the parent or guardian of such person shall pay to the state home for his support, provides as follows:
"For each child or other person committed to such home there shall be paid by the county from which he is committed to the state treasury the sum of ten dollars monthly for and during each month, or part of month, such person so committed remains an inmate of the hospital, in case the payments herein provided to be made by the parent, guardian, or other person charged with the support of any such person shall not be made."
Section 2193 of the same code, before the amendment thereof in 1911, was as follows:
"Each county auditor must include in his state settlement report rendered to the controller in the months of May and December the amount due the state under this act by reason of commitments to the home for feeble-minded; and the county treasurer, at the time of the settlement with the state in such months, must pay to the state treasurer, upon the order of the controller, the amounts found to be due to the state by reason of the commitments herein referred to."
Section 2197 of the same code provides that —
"The commission may in its own name bring an action to enforce payment for the cost of determining the insanity of any person and securing his admission into a state hospital, *627 when his estate or any person is liable for the same, or to recover for the use and benefit of any state hospital or for the state the amount due for the care, support, maintenance and expenses of any patient or inmate therein, against any county, person, guardian or relative liable for such care, support, maintenance and expenses."
When the action was commenced, as well as when the second amended complaint and the demurrer thereto were filed, this was the only authority given the plaintiff to sue to recover any money for the use or benefit of the state. The money that is required to be paid to the state treasurer by the county treasurer (secs. 2192 and 2193) is not paid into any fund for the state home or hospital. The hospital is supported by a general appropriation made therefor, and such sums as may be paid into the contingent fund thereof by persons liable for the support of inmates. The money required to be paid by the county and its treasurer under sections 2192 and 2193 goes into the general fund of the state treasury, and there can therefore be no pretense that plaintiff has any control or power thereover, other than such as is expressly given by the statute.
The section (2197), under which the plaintiff claimed the right to bring this suit against the county treasurer gives only the right to sue "any county, person, guardian or relative liable for such care, support, maintenance and expenses."
Appellant claims that the right to sue the county treasurer is embraced within the right to sue the county.
But the county treasurer is not the county, and a suit against the county is a very different affair from a suit against the county treasurer.
In a suit against the county the board of supervisors controls the defense, and the county is liable for such costs as may be awarded to the plaintiff.
The county treasurer controls the defense in an action against him and is liable for the costs.
We cannot hold that the statute as it existed when this action was commenced authorized plaintiff to institute this suit without reading into the statute something neither expressly nor by necessary implication contained therein. This we may not do. *628
The trial judge, in passing upon the demurrer, seemed to be of the opinion that the complaint failed to state a cause of action because it not only did not appear that any claim had ever been presented to the board of supervisors, but it did affirmatively appear that the county auditor had never issued any warrant for the payment of the money demanded, and had never given any statement to the controller of any amount due the state, as required by section 2193 (Pol. Code).
It is alleged that the controller did issue his orders to the defendant to pay the amounts claimed, which aggregate the sum of $1,460, and cover the years 1903, 1904, 1905, and 1906.
Whether or not the county treasurer may be compelled to pay money from the county funds to the state upon the controller's order, without any warrant or statement from the county auditor, presents an interesting question, but one not necessary to be decided upon this appeal.
There is in the complaint no allegation that there was any money in the county treasury, or in the custody of defendant as such county treasurer, with which to pay the demand sued for, — which defect is expressly pointed out in the demurrer.
Such an allegation is necessary in a petition for a writ of mandate to compel a county treasurer to pay money from the public funds.
In the case of Stevens v. Truman,
"The complaint failed to allege that there was any fund out of which plaintiff could be paid, and was therefore insufficient."
People v. Reis,
Where an officer's duty to issue a warrant for the payment of money is dependent upon there being money in the fund applicable to the payment of the warrant, a petition that is silent upon the subject of money in the treasury is insufficient to entitle the plaintiff to a writ of mandate. (Cramer v. Supervisors,
In the case at bar defendant's duty to pay was dependent upon his having money in his cutsody as county treasurer applicable to the payment of the demand; and under the rule of pleading laid down in the above cited case such fact was an essential allegation of the petition for the writ. The cases ofRobertson v. Library Trustees,
Appellant also relies upon certain expressions used by the court in Connor v. Morris,
For the reasons above stated the amended petition when filed and when demurred to did not state facts sufficient to constitute a cause of action against defendant.
Appellant, however, contends that even if the objections to the petition above discussed were good at the time of the commencement of the action and the filing of the demurrer, they were obviated by an amendment to the statute which took effect a few days before the demurrer was ruled upon. *630
This amendment consisted of the re-enactment of section 2193 of the Political Code, with the addition thereto of the following words: "In the event of the failure of the county auditor or county treasurer to do or perform any of the things required in this section, the state commission in lunacy may require the county treasurer by writ of mandate to pay to the state treasurer, upon an order of the controller, all amounts found to be due to the state as aforesaid at the time of the next settlement of the said county treasurer with the state, and it shall be no defense to such a proceeding that the county auditor has failed to include such sums in his said report rendered to the controller; and it shall not be necessary for the said commission to allege or prove any fact with relation to the condition of the funds of the county. The said commission may, in its discretion, recover sums due from counties as in this chapter provided, by the presentation of claims against the board of supervisors, and recovery may be had on all sums due the state for a period of three years next prior to the presentation of any such claims."
It is quite true that the legislature has power to pass retroactive laws, that do not impair the obligation of contracts or vested rights; but it is equally true that laws are not construed as intended to have a retroactive or retrospective effect, so as to affect pending litigation, unless such intent is expressly declared or necessarily implied in the language of the statute.
In Smith v. Lyon,
There is nothing in the language of the statute relied on by appellant in this case that justifies us in giving it any retroactive effect under the rule above stated. That the rule above stated is quite correct, with one possible or rather apparent exception to be hereinafter stated, is abundantly established by adjudicated cases. The latest one to which our attention has been called is Vanderbilt v. All Persons (S. F. No. 5537),
In Baines v. Jemison,
In Wetzler v. Kelly Co.,
(See, also, Sanborn's Estate,
The cases of Ferry v. Campbell, 110 Iowa, 290, [50 L. R. A. 92, 81 N.W. 604], and Dieterich v. Fargo,
Bensley v. Ellis,
In Lee v. Buckheit,
In Johnson v. Bradstreet Co.,
The case of Kansas Pacific Ry. Co. v. Twombly,
Judd v. Judd,
At any rate, the correct rule supported by the great weight of authority is as laid down in Smith v. Lyon,
The judgment appealed from must be affirmed, and it is so ordered.
Lennon, P. J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 11, 1913.