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from a county, in this state, is the source from which its authority is derived. The powers to
be exercised under a county government are · conferred by the legislature, irrespective of the will of the inhabitants of the county, whereas the inhabitants of a city are. authorized to determine whether they will accept the corporate powers offered theni, to be exercised by officers of their own selection. Kahn v. Sutro, 114 Cal. 319.
A county is not a municipal corporation within the meaning of section 7, article XI, of the constitution. People v. McFadden, 81 Cal. 489.
A county debt is considered as part of the state debt, and in the same manner as there is no remedy against the state, there may be none against the county. Hunsaker v. Borden, 5 Cal. 290; Price v. Sacramento County, 6 Cal. 256.
A county is not liable for the acts of officers or employés which it appoints in the exercise of a portion of the sovereign power of the state by the requirements of a public statute, simply for the public benefit. This was said in respect to an action for damages for unskillful treatment by the county physician, and failure of officers of a county hospital to furnish sufficient or wholesome food to an inmate of such hospital. Sherbourne v. Yuba County, 21 Cal. 113.
And the county is not liable in damages for injuries by reason of defects from want of repair of a bridge on the public highway. Huffman v. San Joaquin County, 21 Cal. 426; Barnett v. Contra Costa County, 67 Cal. 78.
At common law an action does not lie against a county; and, in the absence of some constitutional or statutory provision, counties are to be treated as political divisions of the state, created for convenience, and not liable for damages caused by neglect of its officers or agents. Tyler v. Tehama County, 109 Cal. 621.
Supervisors cannot create a debt or liability against the county except in the manner provided by law. Linden v. Case, 46 Cal. 172; Carroll ö. Siebenthaler, 37 Cal. 193; County of San Joaquin v. Jones, 18 Cal. 327.
As to contracts with individuals, a county stands in the same situation that the state does. It cannot be sued unless the statute authorizes the suit. The state may pay its debts or not, as it pleases, so far as power is concerned, and may determine the time, mode and measure of payment. The constitution of the United States, and of the state, prohibits the impairment of the obligation of contracts; and it may be said that there is no power in a inoral sense to avoid the payment of just obligations of debt; but it is nevertheless true that the state or county cannot be sued, nor its property subjected to satisfaction of its debts unless by the sovereign will expressed in some constitutional ir statutory provision. “Funding acts,” which reduce the rates of interest and change the evidence of debt and time of
payment, are sustained as a reasonable exercise of sovereign power, and as not conflicting with the constitutional provisions against impairing the obligation of contracts. Sharp v. Contra Costa County, 34 Cal. 290; Rose v. Estudillo, 39 Cal. 270; People v. Morse, 43 Cal. 534; Bates v. Gregory, 89 Cal. 387.
For an instance where such refunding act has been held to create a contract which subsequent legislation could not impair, see Bates v. Porter, 74 Cal. 224.
ORDINANCES. In further keeping with the fact that counties are agencies exercising certain functions of government, is the recognition of the binding force of those ordinances passed by boards of supervisors within the scope of the legislative authority vested in them.
Such ordinances are as much "statutes," within the territorial jurisdiction to which they apply, as are the enactments of a state legislature. “In the one case the power is exercised directly by the legislature, and in the other it is the exercise of a delegated power which has been authorized by the constitution, but in both cases the source of the power is the same. Any inconsistency between the two is to be resolved in favor of the ordinance, upon the principle that of two statutes containing inconsistent provisions that which is later in date is a repeal by implication of the earlier one, and upon the further principle that a statute making a particular provision for a
designated object or district will be deemed to contain the legislative will for that district or object, and will prevail over a general law applicable to the state at large."
The foregoing language was used with reference to a county ordinance regulating and licensing the sale of spirituous liquors in the county. of Kings, and a subsequent ordinance of the city of Hanford in said county, the city having become incorporated subsequently to the enactment of the county ordinance. Ex parte Roach, 104 Cal. 274-5.
The language is equally applicable to counties as to cities. Ex parte Campbell; 74 Cal. 23-25, and cases there cited; Const. Art. XI Sec. 11.
But it must be kept in mind that this supremacy of ordinances must be confined within the language of the grant. “Such local police, sanitary or other regulations as are not in conflict with general laws;" for neither the constitution nor the legislature has delegated the general power of legislation to counties or municipalities, and the power and duty of regulating these inferior organizations, by general laws, is retained in the legis. lature.
RESTRAINTS UPON THE EXERCISE OF POWERS.
From the general character of the business contided to or imposed upon boards of supervisors it is evident that they constitute special tribunals possessing mixed powers-administrative, legislative and judicial-and it has
frequently been so held, and it becomes a very important question frequently, to what extent these boards may be controlled, directed and restrained in the exercise, or abuse of these powers.
The usual remedies are Mandate, Prohibition, and Review, and these are provided for in the Code of Civil Procedure, as follows:
MANDAMUS. SEC. 1084. The writ of mandamus may be denominated a writ of mandate.
SEC. 1085. It may be issued by any court, except a justice's or police court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.
In the first place it must be observed that as to legislative action there are scarcely any circumstances under which either of these remedies can be made applicable. As to certiorari the law, as hereafter quoted confines it to a review of judicial action, or rather to an excess of jurisdiction in matters pertaining to the judicial powers of the tribunal, board, or officer; and, as will be further shown presently, mandamus lies to compel action, but cannot be employed to compel action of a particular quality; and as legislation involves discretion of a peculiar character, and since the constitutions, both national and state, distribute the