The herald., 1893-02-16
The County Can Recover the Banbury
Money?

EDITORS HERALD: Ihe taxpayers are
with you" in your just effort to cover
the $4,000 exchange money captured by
Banbury back into the county treasury.
You stated editorially yesterday that
it is doubtful if the county can ever re-
cover this money!" on the theory that
the supervisors who allowed the claim
acted judicially in making Che allow
ance; that this allowance became q
judgment which could only be set aside
within a certain time after the allow
snce and payment.
In this conclusion you were in error.
Our supreme court has decided that
counties are not municipal, but are po-
iticsl corporations. The action of the
supervisors is mainly Legislative, but in
auditing an account which is illegal
charge against the county," their action
10 quasi judicial.
But in Bsnbury's case the items al
lowed him were not legal charges against
the county. No law provides for any
such charges. The compensation of the
treasurer was fixed at a certain salary
by the county government bill.
Section 1866 of the Political code
obliges the treasurer twice year to pro-
ceed to the state capital and settle with
the state controller, and "pay over in
cash" to the treasurer of the state ell
funds due the state.
Section 1876 of same code provides
that the controller OF etnte allow the
treasurer mileage at the rate of 40 cents
per mile from the county seat to the cap.
ital, as a compensation for making these
settlements and payments.
Query. Ask the controller If Banbury
got these allowances from the state in
addition to what he got out of the
county. Ii the allowance was one which
the board of supervisors was not en-
powered to make, then their judgment
in so allowing came was nullity. (See
People VS.. Supervisors Ell Dorado coun-
ty, ii CAL, 175; also Linden vs. Case,
46 CAL, 174.)
1t was clearly matter for the state to
care for, and not for the county. and
the legislature covered the matter by
providing that the county treasurers
should be allowed mileage by the state
authorities.
The supervisors who made the allow
aDce were bound to know, and did
know, that they acted without jurisdic-
tion in allowing the claims.
The auditor should have refused to
draw warrants on such claims, for he
knew the demands were illegal. He is
supposed to be the check between il
legal action by the board and the cash
in the treasury, and the supreme court
in the able opinion by Judge Temple in
the recent case of Merriam Va. the
Board OF Supervisors, 72, Cal. 519, says
of the auditor in similar case: The
auditor ought not to draw his warrant
for an illegal demand, even though al
lowed by the board, and if he does 80
knowingly and wilfully he is personally
responsible, and may be made to refund
the money thus illegally paid. The
same rule applies to the treasurer.
'The warrant drawn by the auditor
would be no excuse for the payment of
a claim known not to be a lawful
charge"
Then the district attorney is required
to look after the affairs Of the county,
and 1t is his duty OF his own motion to
commence suits to recover money ille-
gally paid out (Pol. Code, sec. 1885 I;
County Gov. Act, sec. s..
"The members of the board would
themselves be individually responsible
for moneys paid out wilfully without
HulHurlty vi law luey are bIunboeb VI
the funds for certain specified purposes,
and cannot without violating their
oaths allow them to be applied to other
purposes.
"fhey act judicially. it is true, and
will not be held accountable for mere
errors, but they will not be excused on
the ground that they have acted hon
estly merely because they do not steal
the funds. If they wilfully appropriate
money for purpose not authorized by
positive law, they are liable civilly and
criminally."
Concluding. There being no law au-
thorizins the allowance of the claims,
there was no judgment allowing them.
the act of allowance was willful disre-
gard of law, and all the officers partak-
ing in or tainted with the epoliation are
liable on their official bonds therefor.
To make sure shot on behalf OF the
taxpayers and save this $4,000 to them,
our district attorney should sue at once,
before any question of statute OF limits-
tions can ARISE On thesoficisl bonds, not
only of the treasurer, but of the auditor
and the several supervisors who joined
in allowing the claim.
Vigorous action on the part OF the
district attorney will win. delays are
dangerous. A LEGAL TAXPAYER.
N.Itfo.~x.