People ex rel. Barry v. Gray

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an application for a writ of mandate to compel the defendant, who is the County Treasurer of Solano County, to pay a certain warrant drawn on the treasury of that county. The case was tried by the Court, who found for the plaintiff, and a judgment was rendered accordingly, from which the defendant appeals.

It appears that the warrant in question was issued to one Thompson for services as District Attorney; that he intrusted it to one Osborne to sell for him; that Osborne lost it; that Thompson after-wards applied to the Board of Supervisors for a duplicate warrant, which was issued, and which was in due time paid by the County Treasurer. One Weinemann appears to have sold the original warrant to the relator; but Thompson never sold or assigned it to any person. The following is a copy of the warrant:

“ No. 2,698. Benicia, Solano County, October 27,1858.

“ The Treasurer of Solano County: Pay to James H. Thompson, or bearer, for salary as District Attorney, for the quarter ending October 1,1858, out of the General County Fund, the amount of three hundred and seventy-five dollars ($375).

“ William J. Hooten,

“ Auditor Solano County.”

It has been repeatedly held by this Court that warrants of this kind do not possess the qualities of negotiable paper, like bills of exchange, promissory notes, and the like. (People v. El Dorado Co., 11 Cal. 170 ; Argenti v. San Francisco, 16 Id. 275 ; Martin v. San Francisco, Id. 285; Dana v. San Francisco, 19 Id. 486 ; Keller v. Hicks, 22 Id. 457.) The fact that the warrant is payable to bearer will not therefore make it transferable by delivery like a promissory note thus payable. In Martin v. San Francisco [127]it was held that even where there was a regular assignment of such a warrant by the person to whom it was issued, the assignee could not maintain an action on it without an assignment of the original indebtedness. But in Dana v. San Francisco it was intimated that an assignment of the warrant might be deemed in equity an assignment of the debt on which the warrant issued, and an authority to the assignee to receive the money. In the case of Martin the warrant was payable to the payees, or bearer, and in the case of Dana it was made payable to the order of the payee. It is clear that the County Treasurer cannot be compelled to pay a county warrant to any other person than the one in whose favor it is drawn, without at least an assignment of the warrant by the payee. The affidavit on which the application for the writ was made does not allege any such assignment, or any transfer or assignment either of the warrant or the debt for which it issued, by Thompson; and it therefore failed to show facts sufficient to authorize the writ to be issued. Nor was this defect cured by any evidence. The findings merely state “ that in the month of August, 1859, or about that time, the said Barry purchased and became the owner and holder of said warrant.” This is entirely insufficient to sustain the judgment, even if the affidavit was sufficient.