Winn v. Shaw

California Supreme Court Feb 9, 1891 No. No. 13909Published

Before: Haven

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Holding. The court held that the statutory requirement to publish notice of a county's intent to purchase real property is mandatory, and failure to comply renders the purchase contract void and unenforceable. Furthermore, a taxpayer has standing to sue to enjoin the illegal withdrawal of county funds from the treasury.

Issues

Whether the statutory requirement for publishing notice of intent to purchase real property is mandatory or directory.
Whether a taxpayer has standing to maintain an action to enjoin the illegal payment of county funds.
Whether a contract for the purchase of real property by a county is valid if made without the required public notice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This provision of the statute prescribing the manner in which the board shall proceed in making a purchase of real property cannot be construed as simply directory, but such provision operates as a limitation upon the power of that body”

“we are of opinion that a tax-payer of a county has such an interest in the proper application of funds belonging to the county that he may maintain an action to prevent, their withdrawal from the treasury”

“The vice of the contract in this case is, that it was made without authority of law, and this appearing, it is void.”

Synopsis

County Government Act — Purchase of Real Property — Publication of Notice—Mandatory Statute—Power of Supervisors.— The provision of the County Government Act requiring the board of supervisors of a county to publish notice of their intention to make a purchase of real property for the benefit of the county in some newspaper of general circulation published in the county, ete., is mandatory, and operates as a limitation upon the power of the board to make any purchase of real property unless the publication is made as directed.

Id. — Price of Publication — Combination of Newspapers. — The fact that no newspaper published in the county is willing to publish the notice for the price fixed by the supervisors, and that all the newspapers published in the county have combined to charge higher rates for advertising than 'the board are willing to pay, cannot affect or alter the jurisdiction of the board, or confer upon it power to purchase real property without making the publication required by the statute.

Id. —Validity of Newspaper 'Combination. —The question as to the validity of a contract between newspapers adopting a uniform schedule of prices for advertising and printing, including all county work, is not involved in an action to prevent an illegal payment for land purchased by the supervisors without the publication of any notice.

Id. — Injunction — Restraining Auditor from Drawing Illegal Warrant— Suit by Tax-payer.—A tax-payer may sue to enjoin the county auditor from drawing his warrant in payment for the purchase of land of which no notice has been published.

Id. — Interest of Tax-payer.—A tax-payer of a county has such an interest in the proper application of funds belonging to the county that he may maintain an action to prevent their withdrawal from the treasury in payment or satisfaction of demands which have no validity against the county.

Id. — Damage to County — Illegal Purchase. — It cannot be inquired whether the county will gain or lose by an illegal purchase of land, in an action to restrain the drawing of a warrant in payment therefor, it being sufficient to support the action that the purchase was made without authority of law.

De Haven, J. This is an appeal by the defendant, Shaw, who is the auditor of the county of San Benito, from a judgment enjoining him, as such auditor, from drawing.a warrant of said county in favor of one Hodges. The court found that the plaintiff is a resident, elector, and tax-payer in the county of San Benito; that the board of supervisors of said county made an order declaring their intention to purchase from one Hodges, for the sum of $550, a certain described piece of land for the use of the county, and directed the clerk to give notice of said intention, as required by law; that there were at all times two newspapers of general circulation published in said county, but said notice of intention wras not published in any newspaper in said county; that without such publication, the board of supervisors, at the time [634]fixed in said notice of intention, passed an order to purchase said real estate, and directed the appellant, as auditor, to draw his warrant on the county treasurer for the sum of $550 in favor of said Hodges, upon the delivery of a deed conveying the title to said land, to be approved by the district attorney, and that defendant threatens, and will, unless restrained, draw said warrant, in accordance with said order.

The findings further show that in January, 1890, the board of supervisors of said county fixed the price of all county advertising for the ensuing year at seventy-five cents per square for the first insertion, and twenty-five cents for each subsequent insertion. In March following, the plaintiff and one Shaw, who were the proprietors of the two only newspapers published in the county, entered into an agreement, adopting a uniform schedule of prices to be charged by them'for advertising and printing, stipulating that the same should “extend to all county work, and, where possible and necessary, said county work shall be divided as equally between the two offices as possible, each receiving a profit proportionate to the work done.” By this agreement said newspaper proprietors were to charge for county printing one dollar and fifty cents per square, first insertion, and seventy-five cents per square for each subsequent insertion.

The court further finds that neither of said newspapers was “willing” to publish said notice of intention for the price fixed by the board of supervisors, “ but they were at all times willing and able to publish the same at the rate fixed by their agreement.”

It is also averred in the complaint, and not denied in the answer, “ that the said sum of money will be paid by the treasurer of the said county of San Benito to said J. I. Hodges upon receipt of said warrant and the delivery of said deed.”

Winn v. Shaw

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