Bank of California v. Shaber

California Supreme Court Jul 1, 1880 No. No. 7,060Published

Before: Myrick, Oss, Sharpstein

AI Brief

AI-generated · verify before citing

Holding. The court held that the Board of Supervisors has the authority to settle litigation by ordering the payment of a judgment, and an unauthorized appeal by the city attorney cannot stay the enforcement of that order. Consequently, the Treasurer is estopped from contesting the validity of the judgment and must pay the claim.

Issues

Whether a claim for damages caused by mobs or riots is a valid demand against the city and county after judgment.
Whether the city attorney has the authority to appeal a judgment after the Board of Supervisors has ordered it paid.
Whether the Treasurer is required to pay a judgment when the Board of Supervisors has authorized payment but the city attorney has filed an unauthorized appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the Board of Supervisors have no claim to “ allow ”—that is, no claim which they can say that they will cause to be paid or not, as they may deem just—but the claim is one which they must order to be paid”

“the determination of the board not to prosecute an appeal, and the making of the order for the payment of the claim, terminated the functions of the Attorney and Counsellor in regard to the suit”

Synopsis

Claim Against a City for Injuries caused by Mobs or Riots.—A claim for damages for injuries to property, caused by a mob or riot, (in the City and County of San Francisco) is not to be presented in the first instance to the Boai'd of Supervisors for allowance, as in the case of other claims, but a judgment must first be had, and thereupon the board must order it to be paid, unless they shall determine to appeal.

Id.—Attorney and Counsellor of the City and County of San Francisco—Appeal.—The Attorney and Counsellor of the City and County of San Francisco, while he holds his office by a tenure independent of the board, cannot act independently or against the directions of the board; and held, accordingly—where the board had determined by ordinance not to appeal from a judgment against the city and county for damages, caused by a mob or riot, and had ordered the payment of the same—that an appeal taken by the Attorney and Counsellor was without authority, and did not stay the enforcement of the order of the board.

Id.—Estoppel.—Held, further, that the order of the board, directing the payment of the judgment, operated as an estoppel upon the city and county, as against an assignee for value, who purchased the claim, relying upon the action of the board.

Id.—Mandamus.—And held, further, that upon the refusal of the County Treasurer to pay the claim, mandamus was the proper remedy.

Id.—Appeal—Stay of Proceedings — Mandamus.—Ross, J., (dissenting) was of the opinion, that the appeal by the City and County Attorney could not be treated as a nullity, and that, pending the appeal, the Treasurer could not, by mandamus, be compelled to pay the claim.

Ld.—Id.—Id.—Id.—Shakpstein, J., and McKee, J., (also dissenting) were of the opinion that mandamus could not be maintained: 1st, because the appeal, though improperly taken, operated as a stay; and2ndly, because the petitioner had a plain, speedy, and adequate remedy, by a motion to dismiss the appeal.

Opinion — Myrick

Myrick, J.: This is an application for a mandamus, to compel the respondent, as Treasurer, to pay a certain claim out of moneys in the treasury.

It appears from the petition, that on the 13th day of July, 1878, one J. C. Smith commenced an action against the City and County of San Francisco, in the District Court of the Fifteenth Judicial District, in and for said city and county, to recover damages for injuries to property in said city and county, caused by mobs and riots, which action was defended by said city and county; that such proceedings were had therein that said Smith recovered a judgment against said city and county for $65,273.76 damages, and $912.50 costs, which judgment was entered August 26th, 1879; that on the 1st day of September, 1879, said Smith presented to the Board of Supervisors of said city and county a certificate of the Presiding Judge of said Court, a certificate of the clerk of said Court, and a copy of the judgment roll in said action, together with a written demand, verified, for the payment of said judgment; that on the 30th of October, 1879, said Board of Supervisors, acting on the opinion and advice of the then Attorney and Counsellor for said city and county, and being satisfied that any further proceedings in said action, on the part of said city and county, would be unsuccessful, determined that said judgment should be paid, and thereupon an ordinance or authorization to that end was adopted by said board and approved by the Mayor; that the said claim was duly presented to the Auditor of said city and county, who duly indorsed the same “ allowed,” with date and proper fund; [324]that afterward, November 11th, 1879, the claim was presented to the then Treasurer of the said city and county for payment, but there being no moneys with' which to pay the claim, the same was duly registered by said Treasurer; that after such registration, the said Smith duly assigned said claim to petitioner for value; that on the 15th of January, 1880, petitioner presented the claim to respondent, the present Treasurer, for payment, which payment was refused ; and that at the last-named time, there was sufficient money in the treasury, properly applicable, with which to make the payment; that said Board of Supervisors never authorized any appeal from said judgment to be taken.

The respondent resists the application for the writ, upon two grounds, viz:

Bank of California v. Shaber

AI Brief

Synopsis

Opinion — Myrick

More from California Supreme Court

Related research

Dissent — Oss

Dissent — Sharpstein

AI Brief