Lynch v. Butte County

Beatty, C. J. In this case the defendant demurred to the complaint for want of facts; the demurrer was sustained, and, plaintiff declining to amend, final judgment was entered in favor of the defendant, from which the plaintiff appeals. The only question to be decided is, whether the complaint states a cause of action. Its material allegations are that, in the year 1892, the plaintiff was assessor of Butte county; that it was his duty, as assessor, to make and complete the assessment-roll of said county, between the first Monday of March and the first Monday of July; that for such purpose the assistance of deputies was necessary; that the board of supervisors failed to authorize their appointment; that plaintiff appointed four deputies, whose services' were reasonably worth five dollars per diem, which amounted, for the time they were necessarily employed, to two thousand four hundred dollars, which [447]sum he paid them; that he afterwards presented to the board of supervisors a demand properly itemized and verified for said sum, which was rejected.

Upon these facts the appellant contends that he was entitled to judgment against the county for two thousand four hundred dollars, and he bases his claim upon the provisions of sections 3894 and 3895 of the Political Code, which read as follows:

“ Sec. 3894. The board of supervisors of each county in this state must allow the assessor thereof such a number of deputies, to be appointed by him in addition to the number now fixed, or, where no deputies are now allowed, so many deputies as will, in the judgment of the board, enable the assessor to complete the assessment within the time prescribed by law.”

“ Sec. 3895. The board must fix the compensation of the deputies so allowed; and such compensation must be paid out of the general fund in the county treasury. The compensation must not exceed five dollars per day, for each deputy, for the time actually engaged; nor must any allowance be made but for work done between the first Monday in March and the first Monday in July of each year.”

If these sections were still in force they do not apply to the case made by the complaint. Upon any-reasonable construction of their terms, they require an application to the board, to fix the number of deputies to be appointed, and the rate of their compensation, which thereupon becomes a claim in their favor, payable out of the general fund of the county. If, upon such application, the supervisors fail or refuse to make the proper order, a specific remedy is provided in section 3704 of the same code, as follows: