The record-union., 1891-06-06
WRIT DENIED.
{. A. Burr's Petition for Writ of
Review Denied.
Judge Van Fleet Sustains the Demur-
rer in Burr's Suit VS.. the
Supervisors.


his decision on the demurrer to the
amended complaint of E. A. Burr in his
suit to recover certain moneys paid out
Tor advertising the delinquent tax-list,
which were allowed by the Board of
Supervisors. The petition of Burr for a
writ of review is denied. The decision is
as follows:
in the case of z. A. Burr against the
Board OF Supervisors of the County of
sacramento, the demurrer to the amended
petition Will have to be sustained.
Ihe application is for writ of review
or certiorari, to review the action of the
board OF Supervisors of this county, In
allowing bill OF James McClatchy d
| Co. for printing
The petition alleges in substance that
the claim was presented to the Board of
supervisors, and they, sitting III their
capacity as board, and acting iudicially,
passed upon the claim and allowed it,
when 1t appeared that the claim was not
| duly verified, and for that reason it is
alleged they had no jurisdiction of the
claim, and exceeded their jurisdiction in
making an order allowing it. The peti-
tion proceeds to set forth that after the
aIloWance warrant was duly drawn in
laVor OF the claimant upon the allowed
I clalm and thereafter the money was paid
to and received by the claimant.
ms writ only issues as provided in
Section 1O60 OF the Code of Civil Pro-
cedure, under the following circum-
stances:
a writ of review may be granted by
any court, except a Police or Justices
Court, when an inferior tribunal. board
or officer, exercising judicial functions,
has exceeded the Jurisdiction Of such
tribunal, board, or officer, and there is no
appeal, nor in the judgment of the court,
] DIV on Il Il to
Section of the County Government
ACT provides: Hereafter, whenever any
Board of Supervisors shall without au-
tnorlty OF law, order any money paid as
a salary, fees, or for any other purpose.
and such money shall have been actually
pald; or whenever any other county Off
Ger has drawn any warrant or warrants
IN his own favor, or in favor of any other
person, without being authorized thereto
! by the Board of Supervisors, or by the
law, and the same shall have been paid,
the District Attorney of such county is
hereby empowered, and it is hereby made
his duty, to institute suit in the name of
the county, against such person or per-
sons, 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; and provided further,
! that when the money has not been paid
/
made the duty Of the District Attorney Of
such county, upon receiving notice
| thereof, 10 commence suit, in the name of
the county, for restraining the payment
OF the same; and no order of the Board of
supervisors shall be necessary in order to
maintain such suit
| Now itappears from an inspection of the
face OF this pleading, that the circum-
stances alleged bring it within the class
| OF cases provided for in Section of the
! County Government Act-an instance
| where, under an alleged excess of iuris-
dlctlon and by an illegal act OF the Board
| of Supervisors, a claim has been actually
allowed which they had no jurisdiction to
allow, by reason of the circumstances
alleged, and that that claim has thereafter
| been followed up by warrant upon the
County Treasurer, and the money
actually paid and received by the claim
ant. Falling within the provisions of
Section Sof the County Government Act,
1t appears to me that there is a plain.
| speedy and adequate remedy at law for
| the relief OF the party injured by the
action of the Board Of Superyi-
sors; that is, by a direct action
| against the party receiving this
money, to recover it back, with damages
for its retention. And this being so. the
writ which is applied for here will not
| lie, because, in the language of the statute,
/ 1t is one OF those instances where, in the
| judgement of the court, there is plain.
| speedy and adequate remedy, other than
that sought by the writ.
| But there is another ground ubon which
think the demurrer is equally tenable
1t appears from the face Of this petition
! that the action sought here, even if
carried to a successful conclusion, would
| fall short Of accomplishing the pur-
! pose sought; that is: The recovery of
! this money from the parties to whom il
h1C TNlId Ic%1 -
ultimate object of it, OF course the
| proceedings would be futile and of no
| avail to the parties seeking the remedy
Here it appears that the action of the
| Board OF Supervisors in, as it is alleged,
! illegally allowing this claim, is only a
| part OF the transaction out of which the
cause OF action, II any, arises. That is,
their action in allowing the claim was
subsequently followed up, according to
| the allegations of the petition, by the
actual payment of this money. Now,
conceding that this proceeding could be
allowed. and the action of the Board of
| Supervisors in allowing this claim an
nulled, it would be of no avail whatso-
ever, it would not accomplish return
of the money to the County Treasury A
| judgment in this case, annulling the ac-
| ton of the Board of Supervisors, would
not be evidence in q subsequent action
! brought against the parties who have re-
| ceived this money, and therefore the
accomplishment of the purpose sought
by this proceeding would be an idle and
vain act. 1t is a maxim of the law that
courts do not sit for the purpose of enter
| tanning proceedings OF that character.
| This is not moot tribunal, but one that
| deals with. actual rights and remedies.
and not mere fanciful proceedings for the
| purpose of determining q moot question.
And in that view the pleading is bad,
and the demurrer will have to be sus-
tained.
1t results from this that the writ will
have to be denied, and the petition DIS
missed, with costs to the respondent.
WILDERS SUCCESSOR.
The New Sunnf.intnndanf of tho Poll