Cashin v. Dunn

Sharpstein, J.: Some time prior to July, 1881, the plaintiff was appointed a deputy in the office of the Superintendent of Streets of the City and County of San Francisco at a salary of one hundred and fifty dollars per month. By an act of the Legislature of this State approved March 2d, 1878 (Laws 1877-78, p. 139), it is provided that said Superintendent “ shall be allowed not more than sixteen deputies, to be appointed by him, from time to time; three of said deputies shall receive a salary of two hundred dollars per month each, and six of said deputies shall receive a salary of one hundred and fifty dollars per month each, and seven of said deputies shall receive a salary of one hundred dollars per month each.

Section 85 of the Consolidation Act provides that all “ monthly demands (except that of the Auditor) on account of salaries, fixed by la/w, and made payable out of the Treasury of said city and county, may be allowed by the Auditor without any previous approval.”

On the 4th day of August, 1881, the plaintiff presented his demand in due form for his salary for the month of July, for allowance, to the defendant as Auditor of the City and County of San Francisco, and the Auditor refused to audit and allow the same, on the ground that the Board of Supervisors in fixing the tax levy for the current fiscal year, had not appropriated a sufficient amount to pay the salaries of the deputies allowed to be appointed under the act above mentioned, and that in consequence thereof, he was precluded by the provisions of an act entitled, “ An act to regulate and limit the payment of money out of the Treasury of the City and County of San Francisco,” approved February 25th, 1878 (Laws, 1877-78, p. 11), to allow demands to an amount exceeding that which the said Board of Supervisors had allowed in approximating the tax levy for salaries of deputies in the office of Superintendent of Public Streets, Highways, and Squares.

[583]The act of February 25th, 1878, so far as it is claimed to have any application to this case, reads as follows :

“ It shall not be lawful hereafter for the Board of Supervisors of the City and County of San Francisco, or any committee, officer, or Board having power to authorize or contract liabilities against the Treasury of said city and county, to authorize, allow, contract for, pay, or render payable in the present or future in any one month any demand or demands against said Treasury, or any of the funds thereof, which shall in the aggregate exceed one twelfth part of the amount allowed by laws existing at the time of such contract, authorization, allowance, payment, or liability, to be expended within the fiscal year of which the said month is a part.”