Potter v. Fowzer

Belcher, C. C. This is an appeal from a judgment awarding the petitioner a peremptory writ of mandate.

The facts stated in the petition are as follows: There was due to the petitioner as road overseer of Round Valley road district, in Mendocino County, the sum of $2,046.23, for work and labor done, and for money expended by him, for the district during the quarter-year ending June 30, 1886. There was no money in the road district fund, and only $494.61 in the general road fund of the county. A tax of forty cents on each one hundred dollars of taxable property in the county was duly levied for the fiscal year ending June 30, 1886, but that money had all been exhausted for road purposes. On the 9th of July, 1886, the board of supervisors of the county, at a regular session, made an order that the county treasurer transfer from the surplus remaining in the general fund of the county for the fiscal year ending June 30, 1886, to the Round Valley road district fund, the sum of $1,552.62, for the purpose of paying the said indebtedness due the petitioner. Demand was made that the treasurer obey the order of the board and transfer the money, but he refused, and has ever since refused to do so.

This proceeding was then commenced to enforce obedience to the order. The defendant demurred to the petition, on the ground that it did not state facts sufficient to show that petitioner was entitled to the relief demanded, or to any relief. The court overruled the demurrer, and thereupon the defendant declining to answer, the judgment appealed from was entered.

[495]It is contended on behalf of appellant, that under the provisions of the Political Code, the board of supervisors had no power to make the order transferring the money, and that their action was therefore void. On the other hand, it is argued for respondent that subdivision 20 of section 25 of the county government act (Statutes 1883, p. 299) fully authorized the action of the board, and is controlling in the matter.

Section 2645 of the Political Code provides that road overseers, pursuant to orders of the board of supervisors, must take charge of the highways within their respective districts, keep them clear from obstructions, and in good repair, cause banks to be graded, bridges and causeways to be made where necessary, keep the same in good repair, and renew them when destroyed.

Section 2651 provides that the board of supervisors may annually set apart from the property road tax, collected from all sources, a sum not exceeding thirty-five per cent of the aggregate, for general county road purposes, to be known as the general road fund of the county; that from this fund, beside general road work for the county, the board may assist weak or impoverished districts, but shall have- no power to create a debt on any district in excess of the estimated amount of receipts from said district for the current year. The section further provides that all contracts, authorizations, and liabilities made in violation of the provisions of the code shall be absolutely void.