Boyne v. Ryan

McFarland, J. This is an appeal by petitioner from a judgment for respondent in a proceeding to obtain a writ of mandate. The petition avers that petitioner is a citizen, taxpayer, and resident of Sacramento county; that respondent is district attorney of said county; that McClatchy & Co., proprietors of the Bee newspaper, pre[266]seated a claim of $1,567 to the board of supervisors of said county for advertising the delinquent list, which the board considered and allowed for the sum of $1,317, and the same was paid to said McClatchy & Co.; and that the same was allowed and ordered paid by said board without authority of law. It is averred that the allowance was without authority of law, because the said claim was not properly itemized; because it was not properly verified; because there was no contract made with McClatchy & Co. for the advertising after a publication inviting bids therefor; and because the amount allowed was too large. It is then averred that the respondent knew of these facts; that he was requested by petitioner and other taxpayers to institute a suit against McClatchy & Co. to recover said money paid to them as aforesaid; and that he refuses to do so. The prayer is that respondent be commanded by mandate to institute such suit. The court below sustained a general demurrer to the petition; and, petitioner declining to amend, judgment went for respondent.

We think that the judgment of the superior court was right. The proceeding is founded on section 8 of the County Government Act, Laws of 1891, p. 296, which, so far as material here, is as follows: “ Hereafter, when any board of supervisors shall without authority of law order any money paid as a salary, fees, or any other purposes, and such money shall have been actually paid . . . . the district attorney of such county is hereby empowered, and it is hereby made his duty, to institute suit, in the name of the county, against such person or persons, to recover the money so paid, and twenty per cent damages for the use thereof.”

As the expense of the publication of the delinquent list is a charge against the county, and as the board of supervisors are given the power to examine, settle, and allow accounts chargeable against the county, it is, perhaps, questionable if the averments of the petition show that the allowance of the claim of McClatchy & Co. was “ without authority of law,” within the meaning [267]