Page images

there was no "gift," and that persons earning the bounty acquired a vested right, and that the good faith of the state was pledged to make an appropriation to pay the bounty. A distinction was drawn between “bounty” as used in the statute, and "gift.” Ingram v. Dolgan, 106 Cal. 113.

Legislation on the subject of bounties for the destruction of wild animals may be pursued by referring to “Index to the laws of California" under "Bounties," page 56.

The act of 1883, statutes, page 368, authorizing boards of supervisors to pay such bounties is probably superseded by subdivision 28 of section 25 of the county government act of 1883, which was approved one day later than the act referred to, and the same provision has been retained in the subsequent county government acts.

An act of the legislature making an appropriation for sufferers of the Tia Juana flood was declared upon its face to be a gift, and void. Patty v. Colgan, 97 Cal. 251.

And it is held that where an appropriation does not show upon its face that it is intended as a gift, evidence aliunde will not be received in a mandamus proceeding to show that it is intended for a void or prohibited_purpose. Stevenson v. Colgan, 91 Cal. 649; Rankin v. Colgan, 92 Cal. 606.

An appropriation of money to pay the claim of a person for damages resulting from personal injuries received while in the employ of the state imports a gift, and is void. Bowen v. Hart, 93 Cal. 321. In this latter case it is also held that in passing upon the constitutionality of a statute, only the facts appearing upon the face thereof, together with such matter as is taken judicial notice of, will be considered, and averments of facts aliunde will not be considered. Prohibited contract forms no basis for claim.

SEC. 6. All contracts, authorizations, allowances, payments, and liabilities to pay, made or attempted to be made in violation of this act, shall be absolutely void, and shall never be the foundation or basis of a claim against the treasury of such county. And all officers of said county are charged with notice of the condition of the treasury of said county, and the extent of the claims against the


See section 8, and notes.

The board of supervisors is not authorized to employ a person to find a purchaser for the county's bonds. Any such contract cannot create a proper charge against the county. Smith v. Los Angeles County, 99 Cal. 630,

Section 36 of this act, infra, provides that the board of supervisors must not for any purpose, contract debts or liabilities, in any manner or for any purpose, which exceed in any fiscal year the income and revenue provided for such year, except as permitted by the constitution. See notes under Sec. 36, and Sec. 18 Art. XI, Const. 1879. Officers become personally liable.

SEC. 7. Any officer authorizing, or aiding to authorize, or auditing, or allowing, or paying any claim or demand upon or against said treasury, or any fund thereof, in violation of any of the provisions of this act, or of the constitution of this state, shall be liable in person, and upon his official bond, to the person or persons damaged by such illegal authorization, to the extent of his or their loss by reason of the non-payment of his or their claims.

An action cannot be maintained on an illegal warrant, issued by the supervisors and auditor, against said officers personally, under section 7 of the act. The person in whose favor a warrant is issued upon a claim which is not a legal demand against the county, (damage sustained by breaking of a bridge on a county road) cannot claim to have suffered damage by the unlawful allowance of his claim. Bank v. Bartlett, 78 Cal. 303. Action to recover money unlawfully paid.

SEC. 8. Whenever any board of supervisors shall, without authority of law, order any money paid as a salary, fees, or for any other purposes, and such money shall have been actually paid; or whenever any county officer has drawn any warrant or warrants in his own favor, or in favor of any other person, without being authorized by the board of supervisors, or by the law, and the same shali have been paid, the district attorney of such county is hereby empowered, and it is hereby made his imperative duty, to institute suit, in the name of the county, against such person or persons, to recover the money so paid, and twenty per cent. damages for the use thereof; and no order of the board of supervisors therefor shall be necessary to maintain such suit. When the money has not been paid on such order or warrants, it is hereby made the imperative duty of the district attorney of such county, upon receiving notice thereof, to commence suit, in the name of the county, to restrain the payment of the same; and no order of the doard of supervisors shall be necessary in order to maintain such suit.

Section 4001 Political Code embraced substantially the same provisions.

The same section occurred in the county government act of 1883, and has been repeated in each subsequent act, retaining the same number.

The county government act of 1883 was declared constitutional in Longan v. Solano County, 65 Cal. 122.

The court will not attempt by mandamus to compel a district attorney, against his will, and contrary to his judgment, to commence an action to recover moneys alleged to have been paid under order of the board of supervisors without authority of law. Boyne v. Ryan, 100 Cal. 266.

A petition by a private citizen for a writ to review the action of a board of supervisors in illegally allowing a claim against a county, will not be granted where the money has already been paid on the order; at least until the matter has been laid before the district attorney, whose duty it is to institute the action provided for by section 8 of the county government act. That section provides an adequate remedy in such cases. Burr v. Board of Supervisors, 96 Cal. 212. But see Boyne v. Ryan, 100 Cal. 266.

Actions under section 8 of county government act of 1883, must be prosecuted by the district attorney in the name of the county, or some sufficient reason alleged why the same is prosecuted by any other person, and allegations that the members of the board "misappropriated, wrongfully, unlawfuliy, and illegally allowed and paid out large sums of money," and "that said demands were wrongfully, unlawfuliy, and without authority of law, ordered and paid,” are mere conclusions of law. Hedges v. Dam, 72 Cal. 522.

The provision for twenty per cent. damages is not unconstitutional County of Orange v. Harris, 97 Cal. 601.

A complaint on a bond by a county against its treasurer and his bondsmen to recover sums alleged to have been illegally paid out by him is not demurrable as being ambiguous because in the prayer a penalty is asked for which is not authorized in such action, and,

The complaint in such action on a warrant issued for a claim on which the county was not liable, is not demurrable because it does not set out the contents of the warrant, where, from the facts alleged, its illegality must have been apparent on its face if drawn in compliance with section 114 [110 of act of 1897], of the county government act, which provides that “all warrants must distinctly specify the liability for which they are drawn and when it accrued." Ventura County v. Clay, 114 Cal. 242. Grand Jury to be instructed.

SEC. 9. It shall be the duty of the judge of the superior court of each and every county, whenever a grand jury is impaneled, to call their attention to the provisions of the foregoing sections, and

« PreviousContinue »