Sacramento daily record-union., 1881-09-23

Yesterday Auditor Gerber addressed let.
ter to District Attorney Buckley asking the
opinion of the latter concerning the legality
of the action of the Board Of Supervisors
The District Attorney decides the action il
legal. The correspondence is given In full
below
AupIroRs OFFICE, SACRAMENTO COUNTY,
SACRAMENTO September %, 1881.
Sir: At the session of the Board Of Supervisors
held Yesterday the Board entered into a contract
with Mr. George Cadwalader, employing him as
specal counsel to prosecute the hydraulic mining
cases agreeing in said Contract to pay Mr. Cadwala
der the sum OF twelve thousand dollars Three
thousand Of this amount is under the contract now
payable, and warrant is demanded OF me. Csn
legally draw my warrant for the same? Very re.
spectfuly, W. Z. GERBER, Auditor.
W. E. Gerber County Auditor-Dear Sir: Con.
cerning your duty in the matter OF drawing war.
rant in favor Of Mr.. Cadwalader for the sum OF
S, 900 in pursuance of contract entered into be-
tween him and the Board Of Supervisors Of this
county, respectfully submit the following my
opinion
Section 1915 of the Political Code provides The
Auditor must draw warrants the county treasury
in favor OF all persons entitled thereto, in payment
OF all claims and demands chargeable against the
county which have been legally examined, dIEoloed
and ordered paid by the Board OF Supervisors aso
the amounts are fixed by law, and which are not
directed to be audited by some other person or
tribunal" 1t will be seen from this section that
the Auditor is not compelled to draw warrants for
all claims allowed and ordered paid by the Board of
Supervisors, but the duty rests upon him that
every claim has been legally examined, allowed and
ordered paid by the Board before he draws his war
rant upon the treasury therefor and neglect of
this duty upon the part OF the Auditor renders him
liable in damages.
h The claim u1der consider ,tion is not demand
against the county the amount of which is 81 fixed
by law, nor is 1t directed to be audited by "some
other person or tribunal than the Auditor. The
question therefore mises: Has this claim been
legally examined, allowed and ordered paid by the
Board of Supervisors? That the Board had
the right to enter into contract for the
employment of special legal counsel with the end in
view that county property might be saved from
threatened injury, there can be no question; but,
after examination Of thelaw do entertain doubt
whether debt created in pursuance Of that contract
is claim against the county, which can be paid at
this time. Section 1910 Of the Political Code pro-
Ydes:
tract debts liabilities, except in pursuance
of law, under ordinances of their own,
adopted in accordance with the power herein
conferred and whenever debts and liabil ties
have been created which, added to the sala-
ries OF county officers and other estimated
liabilities fixed by law for the remainder of
the year, equal in the aggregate the revenue
Of the county for current expenses, no further
allowance OF any account shall be made
When this contract was executed, debts and LA
biities were existing (which, added To the salaries
OF county officers and other estimated liabilities
fixed by law for the remainder of the year, not only
equaled but greatly exceeded in the aggregate the
revenue OF the county for current expenses" and
therefore the Board could allow no further account
except for the salaries of county officers, or for an
estimated liability hsed by law l can eonstru'
Section 4070 in no otherm7nner than as being posi-
tive prohibition upon the power of the Boaid to con-
traetdebts Whenthe revenue of ec0untyis unable TO
meet current expenses. This county is deeply in
debt, without ono dollar of revenue wherewith TO
pay the same and in view OF this fact, the creation
OF further debt OF s. 600, to be psid at this time,
as provided by this contract was IN violation OF Sec
ton 1910, and is, in my judgment, a claim not
Le1alLg eramined dllolced and ordered paid by the
Board OF Supervisors within the meaning of Sec.
ton 42l5 of the Political Code. therefore con-
cude that the demand for 50 600 is not such claim
as can he legally paid at this tne, and recommend
that YOU refuse to draw warrant in payment
thereof Very respectfully submitted,
HENRY L. BUCKLEY,
District Attorney.
The case of The People against The Gold
Run Ditch and Mining Company is set for
hearing for Monday next, when it viii be
heard upon demurrer Of the defendant. The
complaint alleges damages to land, which is q
private nuisance; also, damages TO the navi.
gability Of the rivers, which is s public
nuisance. The demurrer is TO the jo;nder OF
these allegations of nuisance in one action.
This demurrer will be argued on Monday be-
fore tue Superior Court of this county,
The popular demand ia that these actions
shall be pushed to final conclusion
The Attorney General states that Mr.. Cad
walader has constantly sought delay in thiE
case, but none viii be countenanced by thC
attorneys for the people. This case against
the Gold Run Company will therefore b
urged TO a speedy Judicial conclusion. The
expression of pablic opinion yesterday was
unanimous and emphatic in condemnation o.
the action OF the Supervisors The people
claim that the actions sought to be brought
by Mr.. Cadwalader for the county canno:
possibly be heard before the conclusion OF the
suit now pending; that therefore the decision
of the Courts will have settled the wholt
question of hydraulic mining by deciding j
long before the actions proposed by Mr.. Cad
walader can be heard. The action in allow
ing this So, 600 is unanimously condemned
hv r,ennle and taxpaYers