Barber v. Mulford

Britt, C. Mandamus. Defendant Mulford is the president, and defendant DeBurn is the secretary of the board of education of the city of Sán Diego; such [357]board is created by the charter of said city, and is charged under the law with control of the affairs of the San Diego school district, which district itself, by its corporate name, is also a party defendant here. On April 27, 1891, plaintiff presented to said board of education a bill for certain services rendered at the request of the latter; thereupon, a motion was carried. and entered on the minutes of the board “ that the bill amounting to five hundred and ten dollars be paid”; and accordingly, a warrant was drawn for that sum on the treasurer of the city of San Diego, the custodian of the city school funds designated by the terms of the charter (Stats. 1889, p. 715); payment was refused, it would seem, for the reason that, by the general law, to which the charter provisions are subject, the county treasury is the proper repository of such funds, as was subsequently established by the decision in Kennedy v. Miller, 97 Cal. 429. There, the money is subject to the requisition of the county school superintendent, drawn upon the county auditor on the order of the board of education. (Pol. Code, sec. 1543.") In 1893, after Kennedy v. Miller, supra, was decided, plaintiff informed the board that said warrant had not been paid, and requested that an appropriate order be drawn in its stead on the county school superintendent, which request was refused. By the rules and practice of the board it is the duty of the president and secretary to sign and deliver such orders for bills which the board has allowed and ordered paid. In April, 1894, plaintiff brought an action against the San Diego school district, alleging in his complaint the facts on which his aforesaid claim was founded, its allowance by the board on April 27, 1891, a subsequent refusal to pay the same, and praying judgment for the amount thereof. Judgment was rendered against him in that action on December 4, 1894, and on the same day he instituted the present proceeding, in which, after trial, the court below awarded a peremptory writ of mandate requiring the board of education and the members thereof to issue in plaintiff’s favor an order [358]on the county school superintendent for a proper requisition in the sum of five hundred and ten dollars, with interest thereon from April 27,1891. The appeal is by the board of education only. No question is made as to the legality of the plaintiff’s demand audited by the board, or as to the propriety of the action of that body in allowing the same.