*1 A. Apr. 13, No. 22980. Bank. [L. 1954.] WILSON, H. Appellant, J. al., WILLIAM G. SHARP et Defendants; KENNEDY, Respondent. W. HAROLD *2 Appellant. for
John J. Guerin Angeles), (Los John Kennedy, County Counsel Harold W. Deputy County Counsel, Alstyne, B. Anson and Arvo Van Respondent. for Plaintiff, a by this action taxpayer, seeks
GIBSON, C. J. County from defendant Angeles to recover on behalf of Los salary by paid officers of the the Sharp and several salary to enjoin payment Sharp, the to to further rights declaring and duties him, judgment to the obtain County Kennedy, parties. Defendant Harold W. original named as a defendant Counsel, was not made a defendant but was the first amended complaint. The amended sole the first time in the second appears in alleged him the second recovery as to basis for purports state a cause of complaint, count of which to granted a motion only against him. The trial court action appealed from count, plaintiff has to the second strike granting motion. the order complaints two original complaint and the amended County Angeles Civil allege as follows: The Los Service vacancy promotional examination to fill a Commission called a knowingly require- fixed the services and the classified qualify. only Sharp The commission so could ments showing Sharp only appli- was eligible list made an rating by investigation rather than cant and determined by After certification the com- competitive examination. appointed Sharp position, clerk to mission, out of paid for his services funds. It and he was eligible Sharp’s appoint- was further averred that the list and payment public money were and that ment void to him was unauthorized.
In the cause com- second of action the second amended here, plaint, alleged which is the one involved County Counsel, given notice of Kennedy, as was written assertedly illegal failed, payments and that he after demand, Sharp. to institute an action Plaintiff seeks portion salary recover paid Sharp of the which was barred the statute limitations the time at this was He payments commenced. claims that the barred could timely have been brought recovered suit had been county counsel. granting operated strike
The order
motion
alleged against
cause of action
remove from the ease
leave no
to be
county counsel and to
issues
determined
appealable
and it
plaintiff,
him
as a “final
between
meaning of
963 of
judgment”
the Code
within
section
Superior Court,
(Young
Procedure.*
Cal.2d
Civil
System
Key
Co.,
Howe v.
Transit
363];
214-215
People
39];
Co.,
v. Buellton
to recover Sec- unauthorized provides supervisors tion 26525 “If part: the board of authority any paid without . . and of law orders amount . money actually any county or if officer paid, draws any . warrant . . board or law without authorization attorney and the warrant is paid, the district shall institute suit in the of money paid, name to recover the per damages and 20 cent the use thereof.” It is conceded County Angeles County of Counsel Los has attorney of statute, functions duties a district under this and we will problem expressly discuss the the statute mentioned counsel. against creates cause of action
Section 26525
a
illegal payments.
(Miller McKinnon,
recipients of
Cal.
County
34,
;
95-96
140 A.L.R.
Santa
83,
2d
of
Janssens,
P.
L.R.A.
Barbara
Cal.App.2d 764,
778-779
Brown,
C
Galli
see
a
920].)
not, however, purport
to create
It does
against
attorney
county counsel,
cause
a
of
district
general principles of
whether,
and we must consider
under
law, an
for failure to institute suit
action will lie
recipient
illegal payments.
of
The references in
authority
payments
the statute to
ordered and made “without
of law” or “without authorization
the board or law” show
par
that the decision as whether
the circumstances
ticular
proceedings
case warrant the
institution
is a matter
involving
questions
the determination
law and fact.
necessarily requires
Such a determination
the exercise
discretion, and
legal
it would seem obvious that
officer
proper person
is the
to exercise this discretion.
(See Boyne Ryan,
Compare
100 Cal.
P.
707].
Supervisors
Board
v. Simpson,
determine not
whether there
been
justified
facts,
but also whether action is
under all
should be made
decision
liability.
analogy
from fear of
A
free
civil
clear
is to be
directly
found in the cases
that officials who are
judicial processes
connected with
immune from
are
civil
liability
acting
scope
authority.
while
within the
(White
Towers,
seq.
Lent, 6
[pilot
Am.Dec.
commissioners, revo
489]
of pilot’s
cation
; Norton Hoffmann,
Cal.App.2d
license]
189, 198-199
prosecution, city attor
[malicious
250]
ney] ; White v. Brinkman,
307, 311
prosecution,
attorney];
Pearson
[malicious
Reed,
The order is affirmed.
Shenk, J., Edmonds, J., Traynor, J., Sehauer, J., and Spence, J., concurred.
CARTER, J. I dissent. county (the majority opinion holds that a counsel The attorney if apply to there were same rule would the district counsel) not for failure to no liable recovery allegedly illegally funds for the take action county employee person, third in this case. I paid to a majority as assume, purposes dissent, for the this does the illegally expended. majority funds were opinion, that the grounds: (1) wholly on conclusion two That it rests bases its counsel within the discretion whether recovery funds, for the he will an action such
680
any circumstances;
hence,
and
he cannot be liable under
(2) “public
requires
by analogy
welfare”
that he be not liable
(White
to the
Towers,
cases
v.
636];
Davies,
A.L.R.2d
v.
Coverstone
The first
of this court
is
Supervisors
Simpson,
in Board
Reliance is 100 Cal. showing P. 707], counsel had discretion Simpson harmony matter. It is not in case with and moreover the court said that *6 “wilfully” pro- refused to the action he could be ceeded for If malfeasance or nonfeasance office. that true, certainly is for he should be liable to the his conduct. agree ground.
I with I cannot the second reiterate Towers, supra, position my I took in in White v. dissents Davies, supra, 38 and Coverstone v. Cal.2d public office should not be a cloak immuniz- wrongful ing liability for In the officer from acts. addi- that, however, apply tion to the rule those cases cannot according to In cases, majority, the case at bar. those public preserved by enabling the officers perform effectively public functions, more and to purpose they achieve that should be free from to third persons injured performance in the course of official duty; public preserved superior that the welfare so was of such importance rights persons give injured of the must way. In bar, however, at case no such situation exists. Here public preserved it is interest obvious that would be by recovering illegally spent, opposed, funds at public the most, to the interest achieved in fearless failure perform duty by counsel to refusing his official necessary protect take the public interest. public no fact there is interest achieved having official duty performed performance when such consists a refusal or failure to an action to recover such funds. The only way preserve public interest here prose- cution of such an In short, action. logically cannot public preserved said interest is the failure public perform duty. officials to their official Therefore, the analogy between this case cited cases completely Indeed, fails. alleged, under the here facts interest that the counsel be held liable failure to perform duty prosecuting his official an action for the recovery allegedly illegally the funds expended.
I judgment. reverse would