The morning call., 1892-04-06
THEIR MISFORTUNE.
Scant Consolation Given the Six
Unpaid Firemen.
Their Demands Are Unauthorized by the Law
and the Auditor Was Right In Refusing
to Allow Them.

Auditor Smiley won his fight with the Fire
Department, and while he is elated Assist
ant Engineers Willis, Walsh and McKittrlck,
Assistant Drayman Burnett and Holsters
Tim Shea and William Shaekleton are cor
respondingly detected.
Judge Sanderson rendered a decision de-
nying the writ Of mandamus to compel the
Auditor TO allow the demands of certain
persons who have been serving in the Fire
Department between June and October.
1891, three Of them in the capacity of acting
assistant engineers, one as assistant dray-
man and two as hostlers.
1t was conceded by stipulation that the
persons whose demands were in question
were appointed by virtue of an ordinance of
the incumbent Board of Supervisors, and
not under any provision of the constitution
or laws of this State relating to the Fire
Department.
Inc question at issue was whether claim
which is not in form and demand upon the
treasury. and which fails to comply with the
provisions OF section 81 of the consolida-
ton act. confers jurisdiction upon the Audi
Tor TO c0nStrue the nature OF such demand
and the basis upon which 1t is made.
II am OF the opinion" said The Judge. THAT
where the demand presented is not In form as
prescribed by the consolidation act The Auditor
Is justified In refusing TO record The same. or
even TO receive Ii or 10 act upon il. Ii he had
no jurisdiction TO act upon II no appeal from bis
action can lie. The Board or Supervisors have
Only appellate jurisdiction where the Auditor
originally possessed original jurisdiction. or
course IL The latter possessed no Jurisdiction
men ms order IN the premises would be anullity
and similar result would follow any such
action OF the Board OF Supervisors.
"In this case IL VIII appear that the demand
presented does not comply with this section Of
The consolidation act If upon examination 1t be
ia "A ~ ny
title, date and section authorizing the demand
presented. This section does not say that tile
demand presented 10 the Auditor must contain
this reference 10 the law under which lie claims
Its allowance. but distinctly says that.i must
contain reiereuce 10 the law author lZing lhe
same.
0"I think The Auditor possessed the right under
Tue act 10 look inlO the section OF the referred
to In the demands and II appearing upon its face
amrmatNeiy that no such persons or officials
were therein named as those presenting the de-
hands that lie had right 10 reject them, for the
law referred 10 does not authorize them. and
there being, therefore, no jurisdiction In the
Auditor fOi him 10 pass upon, there was no 1uris
dletlon In the Board OF Supervisors on the ques.
ilou on appeal The Auditor could no more be
compelled 10 construe Informal demand
than lie could be compelled TO construe merely
oral demand upon him.
"Now, / am not deciding, nor attempting to
decide, that these demands are as a matter OF
law Illegal. That question Is not now before me.
only say they are not authorized by sections 2
or of tie act of 1873. establls hing the Fire De-
partment. 10 which tile claimants refer
IN their demands. III, however, neither that
act, nor any act. contains any provision
authorizing the employment OF an assistant
drayman, nor hostlsrs, nor assistant engineers
| IN numbers beyond those named in section 2
tbeTeof, nor any provision empowering OF con.
ierrlng authority upon The Board OF Supervisors
| TO add numerically 10 the force OF the Fire De-
paTtment as enumerated In The act OF 1873,
| which these Claimants can refer 10 in their
! demands, az authorizing lie same. then that is
thelr misfortune and IL IS matter OF regret that
| servants OF the municipality la. dangerous and
useful positions should be prevented from re.
ceiylng their earnings; but there Is no reason
why courts should be asked TO torture the law
by a forced construction into confession of Tue
legality OF their demands; nor 10 compel lie
Auditor 10 sign demand which manifestly and
on It's lace IS without any authority in law; nor
10 do an act which tue plain provision OF The law,
IS found ia section 81 OF the consolidation act
says he must not do. Neither should the court
be asked 10 confer jurisdiction upon the Auditor
In case Where plainly he has 10 jurisdiction
The case OF Falk vs. STROLLER 81 California
546, which Is discussed at considerable length IN
connection with This case, Is held 10 be dsin-
guishaO!e from this In the facts, though In that
case tie law was carried quite as far.