Smeltzer v. Miller

Vanclief, C. The plaintiff, as a citizen and taxpayer of said county of Monterey, brought this action to enjoin the defendant auditor, perpetually, from drawing his warrant upon the county treasurer in favor of one W. J. Hill for the payment of his claim against the county for having published the delinquent tax list for the year 1894-95, which claim, for the sum of four hundred and sixty-six dollars and sixty-five cents, had been formally allowed by the board of supervisors of that county.

The court sustained a general demurrer to the complaint, dissolved the temporary injunction, and rendered judgment in favor of defendant. Plaintiff appeals from the order dissolving the injunction, and from the judgment.

Whether or not the court erred in sustaining the demurrer is the only question involved or presented; and this is reduced to the question whether the complaint shows that the demand of Hill for having published the delinquent list was not a lawful charge against the county.

The claim of Hill was for having published the delinquent list four weeks immediately preceding June 20, 1895, as to which the complaint contains the following:

“ Plaintiff avers that said publication of said delinquent tax list or roll, if made, was and is entirely unauthorized by any law, or order, or ordinance, and without any right or authority whatever. That no advertisement for, or notice of, the letting of any contract therefor was made or given by the board of supervisors of said county, or at all; that no contract therefor was made by said board of supervisors with said Hill or anyone else, or at all; that said Hill was not, nor was anyone else, the lowest or any bidder for the publication of said delinquent tax list. That no proposals therefor [165]were asked for or received by said board of supervisors, or anyone else; that no contract therefor was awarded to the lowest or any bidder by said board of supervisors, or by anyone, or at all.

“ That the publication of said list by said W. J. Hill, if made, was voluntary and without any right, authority or validity whatever; that said claim of said W. J. Hill, based and founded thereon as it is, is illegal and constitutes no legal or valid claim or demand against the county of Monterey, and, if paid, will wrongfully and unlawfully increase the burden of taxation on this plaintiff, and on and of all other taxpayers of said county.”