Brown v. Klemmer

ANGELLOTTI, J.

By stipulation these two eases are to be heard and determined together. The facts are alike, and the law applying to each ease is the same. The action is in

mandamus

to compel the defendant as county treasurer of Glenn County to transfer from the county general fund, in the one case the sum of $1,512, to the fund of road district No. 2, and in the other case the sum of $854 to the fund of road district No. 5. Demurrers were interposed to the petitions and overruled, and defendant having failed to answer, judgment was given in each case that a peremptory writ of mandate issue in accord with the prayer of the petition. Defendant appeals from said judgments. The.question before us is as to whether the petitions stated facts sufficient to justify the issuance of the writs.

According to the allegations of the petitions, the material facts were as follows: On February 5, 1904, the board of supervisors of Glenn County, by a two-thirds vote, made an order declaring with respect to each of said road districts that the expense of repairs theretofore made to certain bridges therein, if paid in full out of the funds of said road districts, would not only unreasonably overburden but would impoverish said districts, that one half of such expense, $1,512 in one case and $854 in the other, would be a just and reasonable portion thereof to be paid out of the 'county general fund, and ordering that “for the purpose of paying one half of the cost of repairs,” the respective sums aforesaid be transferred from the county general fund to the road district funds, and directing the auditor and treasurer to make the transfers accordingly. There was no order for the payment of any money on account of the repairs, the order being simply one for the transfers. Although there was sufficient money in the county

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general fund, the treasurer refuses to make the transfers ordered, and it is to compel compliance with said orddr that these proceedings were instituted.

We are unable to find in the statutes any authorization for the order made by the board of supervisors. No such authority is to be found in subdivision 18 of section 25 of the County Government Act (Stats. 1897, p. 463) empowering the supervisors to establish such funds “as they may deem necessary and to transfer moneys from one fund to another, as the public interest may require.” This is established by the decision in the case of