Mitchell v. Board of Education

HENSHAW, J.

Motions are made to dismiss the appeals herein upon the ground that no undertaking upon appeal has been filed in either of the cases, and that no order of the trial court has been made dispensing with the giving of them.

Section 1058 of the Code of Civil Procedure provides that “In any civil action or proceeding wherein the state, or the people of the state, is a party plaintiff, or any state officer, in his official capacity, or in behalf of the state, or any county, city and county, city, or town, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the state, or the people thereof, or any officer thereof, or of any county, city and county, city, or town.” Section 946 of the same code provides that, “The court below may, in its discretion, dispense with or limit the security required by this chapter, when the appellant is an executor, administrator, trustee, or other person acting in another’s right.” It is here admitted that the order dispensing with the required undertaking was not obtained. A dismissal of these appeals is therefore inevitable, unless they can be supported under

[374]

section 1058 of the Code of Civil Procedure. In

Lamberson

v.

Jeffords,

116 Cal. 492, the defendant was the county auditor. He was sued in his representative capacity, and, notwithstanding the fact that section 1058 in term's exempts a county only, and makes no express mention of its officers, it was held that when such an officer represents his county, the privilege or immunity of section 1058 is applicable to him, and such also was the decision of this court in the earlier case of

People

v.

Supervisors,

10 Cal. 344. But it is to be noticed that by the terms of the section every county and every municipality is exempt from the general requirement of an undertaking. No difficulty in this case would be experienced if the legislature had seen fit to exempt school districts or public corporations generally, provisions for which are found in the corresponding statutes of many of our states. Nor can any good reason he perceived why the legislature has not done so. The fact, however, still remains that it has not seen fit so to do. Upon the reasoning and authority of