The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1896-10-03

erected or purchrA 81 Dy the
county funds, and situate in Orange
county, which property shall be charged
to the new county, and the amount
thereof shall be an Indebtedness to Los
Angeles county, and shall thereupon
become the property of said Orange
county. In case said commissioners
shall find balance of assets of Los An
geles county over. and above its liabili-
ties they shall belong to Orange county
by the proportion aforesaid, and shall
certify the same to the said board of SUI
pervisors, together with the value of the
bridges and other property as aforesaid;
and IL the amount of said balance of as
sets belonging to Orange county is less
than the value of said property, then the
difference between the two amounts
shall be assumed and paid by Orange
county to Los Angeles county: but if
said amount is greater than the value of
said property. then Los Angeles county
shall pay the difference between the two
amounts to said Orange county"
I'm this state the legislature has pow
er to change the boundaries of counties,
to consolidate two and more counties
into one, and to create new county out
of the territory of one or more previously
existing counties, subject only to the
limitations expressed in article XII. sec
ton 3 of the constitution. And, as said
Ill LUIS <AAScltS equity Va. OldH5C SOuii-
ty, 81 Cal, 331: 1T has been established
by an unvarying law of decision that
upon the creation of a new county out of
the territory of another the legislature,
in the absence of constitutional restrict
ions, may make such provision with ref
erence to the public property and debts
on this division as to it may seem just;
and that in the absence of any provis-
ion in reference thereto the old county
l. Id 20, to- rNyJh
erty and assets, except such public
buildings and structures as lie within
the territory of the new, and will also
be liable for all it's prior obligations"
Assuming. as we must that the
money, q portion of which is sought to
be recovered in this action, was paid to
the defendant as alleged Yin the conf
plant, the payment must have been
made under and In pursuance of the
provisions of an act of the legislature
passed in 1883 (Stats. of 1883, p $500, and
of section % of article of the constitu-
ton. Is. Francisco VS.. Dunn, SO Cal. %:
County of Yolo VS.. Dunn, II Cal 1873 }
Clearly then the money collected in 1892
was due and collectiblc on March II,
1889, and 1t constituted a part of the as
sets of defendant, which might have
been taken into account and apportioned
by the commissioners. thus reducing
the Indebtedness Of defendant to the
extent of it's proportions thereof 1t was
not taken into account it appears, be-
cause the existence of such q claim
against the state was not known to the
plaintiff or defendant. or to the COM
at the time the division Of
assets was made.
THE question then is, can the plain
tiff resort to the courts and maintain an
action to recover its proportion of the
overlooked claim, as money had and Sc
cured to its use?
"It is contended for the respondent
that the matters set up in the complaint
are res judicata; that the commissioner,
in making the division of assets between
the counties acted in a judicial capacity,
and that this report had the force and
effect of a judgment as to all matters
which were or might have been consid-
cred and passed upon by them. and
hence that the plaintiff is estopped from
claiming the relief here sought
"On the other hand, it is contended
for the appellant that the commissioners
were required to perform only minis
terial duties, and that at most they acted
only in quasi judicial capacity. like ar
bitrators or referees, and that this re-
port was not conclusive or binding as to
any matters not actually considered
and passed upon by them.
I'VE think the commissioners were
charged with the performance of quasi
Judicial duties. which were substantially
the same as those imposed upon arbi-
traitors. Their report should therefore
be treated as the award of arbitrators
would be. What, then, was the effect
of the report?
I'm some of the states 1t has been held
that after a submission to arbitrators of
all demands of the parties against each
other, and an award thereon, the award
is q conclusive bar to an action for
do, ND ;cts ok tf,,,A 80
the submission and award though the
demand for which the action is brought
was by mistake omitted to be laid before
the arbitrators, or Internationally with
held, and was not considered or decided
on by them. The preponderance of au-
thority Is, however opposed to this view.
"It is generally held that an award Will
not operate as bar to future action
for a demand which was not actually
submitted to the arbitrator nor adjudi-
Gated by them. Notwithstanding it was
in existence when the submission was
made. and although the agreement was
to submit all demands" 2 Black on
Judgments. Sec. 526, and cases cited.
But conceding this to be so. still the
question remains, can the courts inter-
fere in case like this?
In Sedgwick county VS.. Bunker 1G
Kan. 49S, it was said: "When a county
Is divided the rule for the division and
appOrtlOnment or the DEBTS and prop
erty between such county and detached
territory belongs exclusively to the leg
islature. and not to the courts; and
when the legislature has determined
how the debts and property shall be di-
vided and apportioned the courts can
not Interfere"
''In creating the county of Orange til
legislature determined how the debts
and property of Los Angeles county
should be divided and apportioned, as il
had full power to do. The act prescribed
the limits of each county's rights anu
the methods by which they were to be
ascertained. In performing their duties
the commissioners doubtless intended to
make the division as required, and if
they failed to do SO the failure arose
through mistake. The mistake was one,
however. which. in our opinion, can be
corrected by legislative action only, and
not by the courts. The courts are with
out authority to adjust matters of this
character between counties.
1--WE conclude, therefore, that the de-
murrer and the complaint was properly
sustained, and that the judgment should
be affirmed"
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