Ventura County v. Clay

HENSHAW, J. The district attorney instituted this action in the name and on behalf of the county to recover from the treasurer of the county, and from his bondsmen, moneys alleged to have been paid on illegal claims, together with a penalty of twenty per cent upon the amount so paid.

Defendants moved to dismiss the action upon the ground that it was instituted without authority, and also interposed a general demurrer to the complaint. The motion was denied, but the de[214]murrer was sustained. Upon appeal to this court, it was held that the complaint stated a cause of action against the treasurer and his bondsmen; that the cause of action was not one of . those! contemplated by section 8 of the County Government Act, but was an ordinary action upon an official bond. The judgment was accordingly reversed, with directions to the trial court to overrule the demurrer. (Ventura County v. Clay, 114 Cal. 343.)

Upon the reappearance of the ease in the trial court, defendants sought permission to renew their motion to dismiss upon the ground formerly urged. Permission was obtained, and the motion to dismiss was granted.

Plaintiff appeals, contending that the action is properly brought under section 8 of the County Government Act, and that authority from the supervisors is not necessary to the prosecution . of such an action. Further, it is urged that the court having •once denied the motion to dismiss, it was an abuse of discretion to permit its renewal upon the same ground.

Section 8 of the County Government Act is as follows: “Hereafter, whenever the board of supervisors shall, without authority .of law, order any money paid as a salary, fees, or for any other purpose, and such money shall have been actually paid, or whenever any other county officer has drawn any warrant or warrants in his own favor, or in favor of any other person, without being authorized thereto by the board of supervisors or by law, and the same shall have been 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 moneys so paid and twenty per cent damages for the use thereof, and no order of the hoard of stipervisors shall he necessary to maintain such suit.”

The language italicized-is significant, and when it is considered with the provisions of section 35, subdivisions 1 and 17, of the same act, the conclusion is irresistible that in all other cases saving those embraced in section 8 a district attorney can institute an action only under direction of the board of supervisors. For by subdivision 1 of section 35 it is made the duty of the supervisors “to supervise the official conduct of all county officers .... and to direct prosecutions for delinquencies”; while by subdivision 17 of the same section boards of supervisors are empowered