Schwartz v. Wilson

Searls, C. J. This is an application for a writ of mandate to compel the respondent, Wilson, as auditor of the county of San Luis Obispo, to draw his warrant on the county treasurer in favor of Schwartz and Beebee for $195.30.

A demurrer was sustained to the petition in the superior court, and appellants electing to stand upon such petition without amending, judgment dismissing the application was entered, from which judgment this appeal is taken.

It appears from the verified petition filed .on application for the writ, that Schwartz & Beebee, as copartners, on the 20th of March, 1884, sold and delivered goods, wares, and merchandise the value of $195.30 to the county of San Luis Obispo; that on April 20, 1884, the demand therefor, duly itemized and verified, was filed with the clerk of the board of supervisors of said county; that on the seventh day of January, 1885, the demand was by the board of supervisors allowed for the [503]full amount thereof, and ordered paid “out of the funds of road district No. 1.”

At the date of the sale and delivery of the goods there was money unappropriated and in excess of all outstanding indebtedness of said road district No. 1, in the county treasury to the credit of said road district, and this claim, together with the other liabilities before that time accrued, were not in excess of the revenue actually provided for the year 1884 for said road district.

The goods were sold and delivered to and for road district No. 1.

On or about August 19, 1884, road district No. 1 was changed to road district No. 7, which latter district succeeded to all the rights, funds, and liabilities of No. 1.

On the fourteenth day of July, 1885, the claim of petitioner being unpaid, the board of supervisors entered the following order:—

“ It appearing to this board that there is a surplus of money in road fund of road district No. 7, for the fiscal year ending June 30, 1885, and there is no outstanding claims against road district No. 7 for fiscal year ending June 30, 1885,—and that $804.75 is remaining in said fund,—now, under the power invested in us under subdivision 20, section 25, of an act to establish a uniform system of county and township government, approved March 14, 1883, we hereby order that $334.85 belonging to and in said road fund district No. 7, for fiscal year ending June 30, 1885, be and the same is transferred to the general road fund, and to pay the claims, No. 60, Phelix Dolan, for $26.50; No. 64, Patrick Murphy, for $7; No. 71, Albert Smith, $29; No. 73, Schwartz & Bee-bee, $195; No. 583, T. J. Williams, $77.35. And the county auditor and county treasurer of San Luis Obispo will make the proper entries in their books, and otherwise comply with this order. By the board of supervisors of San Luis Obispo County, California.”