Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-07-18
TIE THREE THOUSAND DOLLARS.
Can the Supervisors Vote Away money
Except on Claims Filed?

Except on Claims Filed?
In the Superior Court Saturday the case OF
the SO, 600 retainer fee voted to Geo. CAd"ai'
ader by the Board of Supervisors came on
for hearing before Judge benson. 1t was on
a temporary Injunction, issued at the instance
Of District Attorney Buckley, restraining
Countv Auditor Gerber from drawing war
rant for Geo. Cadwalader for $4,000 as re-
tsiner for him under an authorization to begin
for Sacramento county, under orders OF the
BOARD of Supervisors, certain suits against
owners of hydraulic mines to restrain them
from depositing tailings Of hydraulic
mines in streams flowing along and through
the county. The case was before the Court
on rule to show cause why q perpetual in
junction should not issue in the matter.
Grove L. johnson appeared for the petition
er and plaintiff, Henry L. Buckley. In re-
sistance there appeared Henry Edgerton,
Martin & Jones and Robert Devlin. These
gentlemen Auditor Gerber distinctly disayow-
ed having employed, and on inquiry made
stated that he had employed no counsel, but
should await orders of the Court IN the
matter.
The counsel therefore nouinally for the
defendant Auditor, hut really for the bench
ciary interested in the receipt OF the retaining
fee Of IS 600, claimed that an application for
perpetual injunction to restrain the AuGl'
tor from drawing tie warrant could not De
entertained at this time that the plaintiff
should file and serve affidavits, and ask TOR
temporary restraining order, and therefore
they moved to discharge the rule to show
cause.
In reply, Mr.. johnson, for the pc
titioner and plaintiff, cited SECTIONS
$50, 526, 527 ard 52S of the Code OF
Civil Procedure. Section $50 provides that
the Court may, prior to Issuance OF the re-
straining order, require notice to be giver,
and may hear the defendant. Section 526
provides that an injunction may issue when
it appears by the complaint that the plaintiff
is entitled to the relief demanded, and that
such relief consists in restraining the COM
mission or continuance of the Act complained
Of. either for limited time or perpetually;
or when it appears by the complaint that the
continuance of the Act during litigation
would produce waste. or great or lrreparabie
injury to plaintiff; or when 1t appears dur
ing the litigation that d fendant Is doing, or
threatens to do, or is procuring. or suffering
to be done, some act, etc. Section 5ZI pro-
yides that the Injunction may be granted at
the time Of the issuing Of the summons
upon the complaint, etc., and in that case
it must show satisfactorily that sufficient
grounds exist therefor, etc. Section 52S de-
clares that an injunction cannot be allowed
after defendant has answered unless upon no.
tica, etc. Mr.. johnson claimed that this was
really the first hearing that plaintiff made
application in the complaint at the time of
issuing the summons, but the Court out of
consideration for defendant set the hearing
for this time that the matter should be de-
cided as though no pestponement had been
made, and that the greater included the less,
and hence the application for the injunction
included the restraining order.
Mr.. Edgerton in reply claimed that the APP
plication of the plaintiff involved a trial.
There is no trial pending and therefore the
order of Court requiring defendant to show
cause why perpetual I'M junction should not
issue should be dismissed. Plaintiff should
have applied for a temporary restraining or
der, not an injunction.
The Court said, in deciding this preliminary
matter, that the application was IN fact made
by plaintiff for an Injunction. but he desired
to allow defendant an opportunity to be
heard. and therefore refused at that time to
grant it, but issued an order requiring defend
ant to show cause why the Injunction should
not issue. Plaintiff now applies for perpet-
ual injunction, which in his opinion includes
everything less. This being an equity pro-
ceeding, it was not necessary to include in
the prayer of the complaint all the relief
asked for. Upon prayer for general relief,
such relief may be granted as the facts al
leged in the complaint and proved at the
trial may warrant. In this matter the de-
PENDANT he knew to be a public officer
believed that he would refrain from
drawing ths warrant, as litigation
had ersued, and therefore thu Court
did not grant plaintiffs request for an iniunc-
ton. but postponed any decision therein, in
order that the party benefcially interested
might be heard. The matter then stood as
though the application was then Saturday
made for the first time. The plaintiff upon
his verified complaint asked for an Injunction,
and the defendant appeared and moved to
discharge the rule requiring defendant to
show cause why the injunction should not
issue. For the reasoEs stated the Court
therefore would oyerruie the motion.
As an answer to the rule to show cause,
Mr.. Deylin read an affidavit sworn to by
Auditor Gerber, setting out that he is Au-
diUor of the county that he received an order
from the Supervisors to draw warrant in
favor Of George Cadwalader for the sum of
So Geo for the matters in said order speci-
fed that such was his authority for drawing
the warrant, but he did not intend, nor did
he threaten to draw the warrant except in
obedience to said order.
Mr.. Devlin read authorities to show that
the Auditor must draw all warrants ordered
to be drawn by the Beard of Supervisors. He
read authorities also showing that the Board
had the power to employ special counsel, and
argued that counsel retained by the Board
need not file a sworn claim for his services
uaiii they were rendered, and that not being
the case, the Board had a right to order
warrant to be drawn in favor Of counsel upon
his being retained, and without requiring him
TO file sworn claim for his services as re-
quired in other cases. The action of the
Board, be argued, in ordering the Auditor to
draw the warrant, is final decision which
cannot be questioned by the Courts.
In reply. Mr.. johnson, among other points
held that the Board, if possessing the power
to employ counsel, can only pay therefor in
the manner as provided by Section 1912 of
the Political Code providing for the pay
meat Of other claims Section 1912 reads /:
1.-THE Board Of Supervisors must not hear or
consider any claim in favor of an individual
against the county unless an account, properly
made out. giving all the items of the claim,
duly verified as to its correctness, and that
the amount claimed is justly due, is presented
to the Board within year after the last item
of the account accrued" Mr.. johnson held
that the Board has no right to drain the
treasury Of the county In any manner except
as provided by law. If they could take
| money out of ths treasury by simply passing
! set Of preanbles and resolutions, there
would be TO protection for the people against
secret raids upon the money in the treasury.
The question in this case is simply whether
The Supervisors can take So. 900 from TIE
county treasury and pay it to counsel with
out any claim or demand therefor being fled
as provided by law. II So 600 can be "reso-
| lutedn out of the treasury for one lawyer, the
entire treasury can be "resoluted" to the
LAWYERS Of Sacramento and no one be com
PEELED to file his account or make oath to his
claim. A good thing for the lawyers but bad
COR the county. He knew Of no law which
gives lawyer o preferred claim upon the
county funds, and ne must in order to draw
money from the treasury, file sworn claim
therefor, as every other claimant Is required
by law to do. Lawyers and lawyers fees are
no more sacred claims against Sacramento
/ than are accounts for services rendered by
| jurymen or supplies furnished by merchants.
! This law requires that the proceedings OF the
Board shall be public, and shall. by minutes
/ properly kept, be preserved, and all claims
| against the county treasury must be sworn
| to, filed, and kept as public records. And
! the law gives lawyers no special privileges IN
this matter. Their claims should be served IN
the same manner as those of other creditors.
Mr.. johnson argued that under Section
| 1916 OF the Political Code the Board bad
| power TO direct and control the prosecution
and defense of all suits in which the county
4 Ia 49, ts,N . 1oAu Ict IN