97 P. 677 | Cal. Ct. App. | 1908
Mandamus. The court made the following findings of fact and conclusions of law:
Plaintiffs are copartners and defendant Sievers is city auditor of the city of Stockton, whose duty it is to draw warrants upon the city treasurer for the payment of salaries of all city officials when due and payable; one Bert Harbin was the duly elected and qualified police clerk of said city and became indebted to plaintiffs for the common necessaries of life in the sum of $126.80, for which amount plaintiffs duly recovered judgment in the justice's court on July 30, 1907, and said judgment is in effect and is final; the salary of said police clerk was the sum of $1,104 a year, payable $92 per month on the first day of each month for the previous month, under the charter of said city, and on August 1, 1907, there was due said Harbin, for salary as such police clerk, the sum of $92 for the month of July, which he attempted to assign to one Williamson, by the following document: "Stockton, Cal., July, 1907. For value received, I hereby transfer and assign my claim against the City of Stockton, California, amounting to $92.00, to H. E. Williamson, and hereby authorize the City Treasurer to pay the same to him as assignee. *661 B. Harbin," and said alleged assignment was filed by said Williamson with the city auditor on or before July 30, 1907; on August 1, 1907, and while there was due and unpaid and payable to said Harbin, his salary as aforesaid, plaintiffs filed with said auditor a transcript of said judgment, duly authenticated, with an affidavit as provided in section 710 of the Code of Civil Procedure, claiming the right to avail themselves of the provisions of said section, whereupon it became the duty of said auditor to draw a warrant for the sum due said Harbin as aforesaid, in favor of the justice of the peace in whose court said judgment was rendered, or to pay said sum to the said justice's court, but that said auditor failed, neglected and refused, and still fails and refuses so to do. It is further found that said salary "was non-assignable and could not be assigned and said alleged assignment is contrary to law and was and is void as against public policy"; that said assignment was for the salary of said Harbin for the month of July, 1907, and was and is the only assignment or attempted assignment made by him to said Williamson; that plaintiffs are beneficially interested in the drawing of said warrant in favor of said justice court, and have no plain, speedy and adequate remedy at law, and that plaintiffs are entitled to a peremptory writ ofmandamus directed to said city auditor commanding him to draw a warrant on the city treasurer in favor of said justice court "for the sum of $90.00, being the amount of the salary of said Bert Harbin as Police Clerk of said City of Stockton for the month of July, 1907, less the sum of $2.00 thereof which is due to the Police Pension Fund of said City of Stockton out of said salary under the charter of said city, or to pay said sum of $90.00 into said justice court." Judgment was accordingly entered, from which and from the order denying his motion for a new trial, defendant appeals.
The bill of exceptions does not purport to contain all the evidence submitted at the trial. The only testimony in the record is that of defendant Sievers, called for plaintiffs. He testified as follows: "Bert Harbin came to my office on July 31st, 1907, and endeavored to draw his salary for the month of July, 1907, stating he wanted to leave town that night; but I refused to allow him to do so, but I took his affidavit *662 which is necessary under the City Charter for a city officer to take before drawing his salary, and he left the office and afterwards and on the same day he returned to my office with H. E. Williamson. The warrant was already made out to the order of H. E. Williamson, as the assignee of Bert Harbin, as a matter of clerical convenience and because of the assignment, set forth in the petition, filed with me either on July 29th or July 30th, 1907. That on August 1st, 1907, I delivered to said H. E. Williamson the said warrant as directed by Bert Harbin July 31st, 1907. The assignment set forth in the petition is the only assignment made by Bert Harbin to H. E. Williamson for the salary for the month of July, 1907, and has not been changed in any way since it was filed in my office by H. E. Williamson."
Appellant makes the following points: 1. That the salary was assignable. Citing sections
It may be conceded that the salary of an officer may be assigned after it has been earned. The question here is whether it may be assigned before it is fully earned or by piecemeal. Should the officer who receives a monthly salary resign or be dismissed from his trust during the month, it may be also conceded that his claim for compensation may be assigned after it is earned, Here, however, the officer was in service for the entire month of July, and still is so far as it appears, and the claim which he undertook to assign was for the entire month, and it was for the entire month that a warrant was delivered to Williamson.
It was decided in Bangs v. Dunn,
The remaining point is, that defendant having issued his warrant to Williamson, it is beyond his control, andmandamus will not compel him to do an impossible thing. As a general proposition it is true that the court will not compel the performance of an act not within the power of the person to whom the writ issues. (Egilbert v. Superior Court,
From any view of the case we think the judgment and order should be affirmed, and it is so ordered.
Hart, J., and Burnett, J., concurred.