McCann v. Sierra County

Murray, C. J., after stating the facts, delivered the opinion of the Court—Terry, J., and Burnett, J., concurring.

The Constitution of California provides, “that private property shall not be taken for public use, unless just compensation be made therefor.” A similar provision is to be found in the Constitution of every State in the Union ; and the result of the decisions on this subject may be briefly stated thus: That compensation must be made in advance, or a fund must be provided out of which compensation shall be made, so soon as the amount can be determined. The property of the citizen cannot bo taken from him without ample means of remuneration are provided. From this it results, that the act of the supervisors of Sierra county, in appropriating the property of the plaintiff to public uses, before making provision for paying him the value thereof, was illegal, and that he might resort to a Court of Equity to restrain them from interfering with the freehold.

A claim for damages done to his possession, could not be joined to a bill for an injunction. The twenty-fourth section of the act of March 20, 1855, entitled “ an act to create a board of super[124]visors in the counties of this State, and to define their duties,” provides that, “ no person shall sue a county in any case, for any demand, unless he or she shall first present his or her claim to the board of supervisors for allowance, and the same shall be rejected in whole or part.”

The declaration contains no averment that said claim for damages was presented to the board of supervisors and rejected by them, yet such an averment was necessary, to enable the plaintiff to recover. See Ellisen v. Halleck et al., 6 Cal., 386.

The appellant contends that this section only applies to demands arising out of the contract, and does not extend to cases of tort, or actions of trespass on the case. The language of the statute is, that “ no person shall sue the county in any case,” and we think the intention of the Legislature was to prevent the revenue of the county from being consumed in litigation, by providing that an opportunity of amicable adjustment should be first afforded to the county, before she could be charged with the costs of a suit.

Judgment affirmed.