156 P. 372 | Cal. Ct. App. | 1916
This was a petition for a writ of mandate to require the auditor to draw a warrant in favor of plaintiff for his services in experting the books of the county under employment by the grand jury. After the preliminary averments, the complaint sets forth that the grand jury, in pursuance of section
There is no difference between counsel as to the principle of law involved, the controversy being rather as to the construction of said section
It is not disputed that the writ of mandate should not issue if there is a plain, speedy, and adequate remedy at law, and that we must look only to the statute to ascertain the extent of the authority of any tribunal to determine and fix the liability of the county for any claims that may be presented. The duty of the auditor is prescribed in section 4091 of the Political Code as follows: "The auditor must issue warrants as provided in section four thousand and seventy-six, on the treasurer, in favor of all persons entitled thereto, in payment of all claims and demands chargeable against the county which have been legally examined, allowed and ordered paid by the board of supervisors. The auditor must also issue warrants on the treasurer for all debts and demands against the county, when the amounts are fixed by law, or are authorized by law tobe allowed by some person or tribunal other than the board ofsupervisors."
There can be no pretense that the present case falls within the foregoing enumeration unless it be included in the class of claims which we have italicized. This is, indeed, conceded, and respondent declares that "the only question in the appeal of this case is whether or not the judge of the superior court has a right to issue an order directing the auditor to draw a warrant in payment of the services of an expert employed by the grand jury. If the judge has such authority, so far as the auditor is concerned the claim is no different from a judgment. If the judge has such authority, the claim has regularly been presented, audited, and allowed just as a claim for witness fees, reporter's fees, and for furnishing the courtroom are allowed. If it has been duly presented, allowed, *637
and ordered paid, the action of the judge, in the absence of fraud, is conclusive, and the auditor cannot lawfully refuse to draw his warrant therefor." He further insists that such authority for the judge to audit the claim and make the order for its payment is found in said section
Before analyzing said section we may examine the decisions cited by respondent in support of his contention.
The first of these is Ex parte Reis,
In Boys and Girls Aid Soc. v. Reis,
McAllister v. Hamlin,
In Ex parte Widber,
This case, however, is strikingly different from those hereinbefore cited. We look in vain in said section
It is thus to be seen that the only thing in the matter concerning which the court acts is the employment of the expert. The court must approve the employment, and this before the grand jury employs him. Said body has no power to employ him without said approval. There is not a syllable as to any further action by the court. Of course, any order of approval of the employment made by the court before the services are performed cannot amount to an audit or certification of the claim. The claim against the county does not mature until the work is done, and then it is to be paid "as other county charges." That can mean nothing else than that it stands upon the same footing as ordinary claims against the county. The approval of the court gives validity to the contract, but *640
the power to fix the amount due after the services are performed does not follow from the exercise of the authority to permit a legal charge to be incurred against the county. As stated by appellant, "the sheriff and district attorney each has the right to incur expenses legally chargeable against the county for the detection of crime, yet no one would argue that either of those officials has the power to direct the auditor to draw a warrant for those expenses." The matter of the expenses of the district attorney was, indeed, considered by the supreme court in County of Yolo v. Joyce,
It is, no doubt, the declared policy of the law to confide to the board of supervisors the general supervision and control of the financial affairs of the county. It is made their duty "to examine, settle, and allow all accounts legally chargeable against the county, except salaries of officers, and such demands as are authorized by law to be allowed by some other person or tribunal, and order warrants to be drawn on the county treasurer therefor." (Pol. Code, sec. 4041, subd. 12.)
Here, as we have seen, there is no other tribunal authorized to allow the claim. When the employment is approved by the court and the services are performed, they become a legal charge against the county, but, there being no special mode provided for the payment of said claim, it is "to be submitted to the board of supervisors as other claims against the county are submitted." (Murphy v. Madden,
The propriety of submitting said claim to some tribunal to be audited and allowed must be apparent. As we have seen, *641 the only authority committed to the court is to approve the employment, and it may be said that the only power of the grand jury is to enter into an agreement for the employment at an agreed compensation per diem. In other words, the court and grand jury can authorize the employment of an expert and fix his daily compensation, but their power extends no further. If it had been the intention of the legislature to clothe the court or the grand jury with the authority to audit the demand and direct its payment after the services had been performed, it must be presumed apt language for that purpose would have been used.
In conclusion, we may say that there should be no difficulty in securing favorable action by the board of supervisors if the work was actually performed. There seems to be time yet for petitioner to present his claim as suggested, and we feel satisfied that such is the course to pursue.
The judgment is reversed.
Chipman, P. J., and Hart, 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 April 6, 1916.