The herald., 1893-12-21
NOW, JABEz BANP.RY, PAY UP
Judge Van Dyke Renders a
Wise Decision.
Banbury Loses His Suit With the
County and Must Pay.
Judge Van Dyke Says the supcrvisors
Had No Right to Allow Banbury's
Demands for Express
Charges Never Paid.

Judge Van Dyke rendered his decis-
ion yesterday in the case of the County
of Los Angeles VS.. Jabez Banbury, de-
Gliding that Banbury had no right to the
money drawn by him from the treasury,
and giving the county Judgment for
$2l4S.05, with interest.
This is an action to recover from the
defendant moneys allowed to him as
county treasurer by the board Of super
visors of said county upon claims pre-
sented to the board for expenses for ex-
pressage and exchange alleged by de-
fendant to have been paid out by him
for transferring moneys belonging to the
state of California from the county
treasurer of Los Angeles county to the
state treasurer at Sacramento, and from
Sacramento to Los Angeles.
The power given the board of super
v.sors to allow claims is found in the
county government act, originally in the
political code, and is as follows:
ITO examine, settle and allow all ac-
counts legally chargeable sgainst the
county, except salaries of officers, and to
order warrants to be drawn on the
county treasurer therefor
1t will be seen, therefore, that the
claims which the supervisors have juris-
diction to allow, must be such as are
illegally chargeable against the county,"
The various county government acts,
in substan TALLY the same language, de-
clare what shall be county charges, and
the charges made in these claims are
not enumerated, nor can these claims be
called contingent expenses necessarily
incurred for the use and benefit of the
county," within the meaning OF the
county government act. The settling of
the county treasurer with the state con-
troller and payment of state funds and
receiving funds from the treasurer is
not contingency, but regular duty
provided by the code; nor was the ex-
pense, il any, necessarily incurred for
the use and benefit of the county" it
was for the benefit of tbs state.
The political code makes it the duty
Of county treasurers ito proceed to the
state capitol and settle in full with the
controller of state all funds which have
come into their hands as county treas
urers before the close of business at the
end OF the previous MONTH" (Secticns
1865 and 3S66) And the county treas
urers are allowed in settlement with the
controller mileage. at the rate of 40
cents per mile, not exceeding 500 in all.
political code, 3S76.)
The salary OF the county treasurer of
this county is fixed in lieu of fees and
commissions, and all fees and commits
sions received must be paid into the
county treasury, and the compensation
OF county officer cannot be increased
during his term of office. (Constitu-
tion, article III, section 81 The services
performed were for the benefit of the
state and not for the county, and the
treasurer was entitled to be allowed
therefor the mileage expenses, as pro-
vided by law, when settling with the
etate controller.
made by board OF supervisors ia valid
or binding unless it is authorized by
law. No claim against the county can
be allowed unless It be legally chargeable
to the county, and IL claims not charge
able to the county are allowed, neithe:
the allowance nor the warrants drawn
therefor create any legal liability, and
they are void.
1hO OOal VA oAPOi NioOioy thOi uh0
no Jurisdiction to allow the claims in
question and their act in the premises
is simply void, and the defendant had
no legal claim on the funds drawn from
the treasurer or withheld by him in
pursuance of such allowance by the
supervisors.
1t seems, however, that the money
was drawn or retained by the defend
ant under claim of right; that is, that
he, as we'll as the supervisors, supposed
that the treasurer was entitled to the
same for the transmission OF the funds
in question to the state treasury. 1t is
not, therefore, case OF embezzlement
or OF fraudulent conversion, as suggest
ed by the district attorney, but eimply
q case of money had and received. In
all cases where money comes to the
possession of one party which legally
belongs to another, the law implies a
promise on the part of the one retaining
the money to pay it over to the rightful
owner. 1t is case, therefore, of con-
tract, obligation or liability, not founded
upon an instrument Of writing, but inn
piled by law, and falls within section
339, subdivision !, @. G. P, and is barred
within two years. Any time after any
portion of the money go allowed by the
supervisors wae drawn from the tresau-
ry, right of action accrued on the part
of the county to recover the same
County government act, section 81.
Coneeq uently the statute of limitations
commenced running from the time the
money was withdrawn from the treas
ury, and under this defense of the de
fendant all sume drawn from the treas
ury more than two years prior to the
WORLDS FAIR ME