Power v. May

Henshaw, J. This is an appeal from, a judgment given on the pleadings.

Plaintiff applied for a writ of mandate against defendant, treasurer of Tulare county. In his complaint he averred simply that the auditor of the county had issued to him a warrant payable out of the hospital fund, which warrant recited that it was “for commissions on moneys collected from the state for indigents.” The warrant was presented to the treasurer, who refused to pay it, although there wras and is, sufficient unappropriated money in the fund for that purpose.

After the filing of defendant’s answer the court rendered the judgment appealed from.

Respondent contends that the only questions presented by the appeal are two questions of law: 1. Has the board of supervisors the power to employ an attorney for the purpose of collecting a claim due the county from the state? This question is completely answered in his favor by the case of Lassen County v. Shinn, 88 Cal. 510. 2. Can the board of supervisors legally allow a claim for the beneficial use of money, labor, or property, although the formalities necessary to bind the county have not been employed? Without entering into an elaborate consideration of this question, it is sufficient to say that this may at times, and under certain circumstances, be done, provided the power to do so be not withheld in the grant of powers to the board, and provided further that the service has been bestowed, or the money expended for the benefit of the county in a manner authorized by law. Under such circumstances, if the board had original power in the premises, it may cure informalities or irregularities in procedure by a subsequent ratification and recognition of its liability. (Waitz v. Ormsby County, 1 Rev. 370; Pimental v. San Francisco, 21 Cal. 352.)

[209]But, while both, of these questions may thus be resolved in favor of respondent, their answers do not, as respondent claims, remove all difficulties.

The pleading of defendant is far from being a model. Indeed, it is an extremely bad pleading. It denies matters not averred in the complaint. It “ alleges that defendant has been informed, and has reason to believe, and does believe," certain facts, but does not aver the existence of these facts. It expressly admits in one paragraph that there is money in the hospital fund sufficient to pay the amount claimed, after payment of all other sums legally chargeable against that fund, and elsewhere seems to aver that the moneys of the fund' had all been exhausted before presentation of the demand.