The record-union., 1891-02-16
G.. H. GILMAN,
Red House, Sacramento.

were at all times willing and able to pub
lish the same at the rate fixed by their
agreement"
1t is also averred in the complaint, and
not denied in the answer, THAT the said
sum of money will be paid by the Treas
urer OF the said county of San Benito to
sald j. L. Hodges upon receipt Of said
warrant and the delivery of said deed"
The foregoing constitute all the ma
terial facts, necessary to be considered, in
giving Judgment on this appeal.
l. The County Government Act pro-
vides as follows: ''Section 25. The Boards
of Supervisors in their respective coun-
ties have jurisdiction and power under
such limitations and restrictions as are
prescribed by law:
''S. To purchase any real or
personal property necessary for the use of
the county but no purchase of
real property must be made unless no.
tice of the intention of the board to make
such purchase, describing the property to
be purchased, the price to be paid there
for, from whom it is proposed to be pur-
| chased, and fixing the time when the
board will meet to consummate such pur-
chase, shall be published for at least three
weeks in some newspaper of general cir
culation published in the county, or if
none be published in the county, then by
posting such notice." etc.
This provision of the statute, prescrib-
ing the manner in which the board shall
proceed, in making purchase of real
property, can not be construed as simply
directory, but such provision operates as
Limitation upon the power of that body
| to make any purchase of real property,
and unless the publication is made as di-
rected the board has no jurisdiction to act
at all. The manifest design of the law is
| that notice of such proposed action shall
be given to the tax payers of the county,
whose DrOnprtV hp affpctp6 Inv ct1cb
| a purchase, so that by remonstrance. or
petition, they may be able to prevent it,
| or at least be afforded the opportunity to
be heard in the matter, and we have no
doubt that compliance with the statute
i'll this respect is essential to the validity
OF any such contract OF purchase.
1t is urged, however, that to hold this
provision of the statute mandatory, is to
place 1t in the power of newspaper pub
fishers to enter into illegal combinations,
which in effect deprive the Board of Su-
pervisors OF any voice in the matter of
determining what shall be paid by the
county for such publications, or of eXer-
cising any judgment in relation to such
subject. And it is argued that this case
affords an illustration of the manner in
which county may be subjected to the
payment of exorbitant charges, or else
cease to perform such governmental func-
tions as, in order to sbe legally exercised.
the proceeding, one instance of which is
to be found in the sectioneof the County
Government Act relating to the enact
ment of ordinances. This is an argu-
ment, however, which could more prop
erly be addressed to the Legislature The
language of the statute unoer considera-
ton is plain, and the court must give
effect to it as it is written, and if the evils
suggested are likely to flow from this
construction the remedy must be by leg
islative action. Doubtless the law could
be amended SO as not to destroy it's eff
cheney, by providing that the publication
may be made in any paper circulating in
the county, or giving the board discre-
ton In selecting paper likely to give
notice.
=. The appellant contends that tax
payer cannot maintain an action in this
class of cases, and as authority for this
position refers to the case of Linden VS..
Case (46 Cal. 174), Mccoy VS.. Briant (53
Cal. 249), and Merriam VS.. Board of
Supervisors az CAL. 5l9).. While there is
some general language in each of these
cases which lends support to the conten-
ton OF the appellant on this point, still
they are on the facts distinguishable from
this, as in neither of them did it appear
that the remedy of injunction was neces-
sary in order to keep the county money
from being illegally drawn from the
treasury. But be that as it may, we are
OF opinion that taxpayer of county
has such an interest in the proper appli-
cation of funds belonging to the county
that he may maintain an action to pre-
vent their withdrawal from the Treasury
in payment or satisfaction of demands.
which have no validity against the
county. The weight OF authority seems