for injury to real or personal property situate within its corporate limits, done or caused by mobs or riots." Actions for damages under this provision must be tried in the county in which the property injured is situated, and all such actions must be commenced within one year after the act complained of is committed. The plaintiff in any action authorized by these provisions may not recover if it appears upon the trial that the damage complained of was occasioned or in any manner aided, sanctioned or permitted by his carelessness or negligence. A statute similar to the provisions of the present code provisions on this subject has been construed as creating a new right, and providing a new remedy therefor, which is complete in itself; and a claim thereunder for damages for property destroyed by a mob was not required to be presented to the board of supervisors for allowance before bringing an action to recover a judgment on it.5 6 § 92. Liability of Officers.-As heretofore stated, a county is not ordinarily liable for the negligence of its officers; but the question of the liability of such officers for their own negligence presents more difficulty. The general rule in California, if there may be said to be one established, has been declared to be that county officers are liable for their negligence where the duty imposed 1. Pol. Code, § 4452. 2. Pol. Code, § 4453. 3. Pol. Code, § 4454. Pol. Code, § 4455, provides for warrants to be issued for payment of such damages and for the levy of taxes for the purpose of paying the warrants. 4. Pol. Code, § 4456. The applica tion of the foregoing provisions to cases where levees or other works of reclamation are injured is gov erned by Pol. Code, § 4457. 5. Clear Lake W. W. Co. v. Lake Co., 45 Cal. 90, construing Act of March 27, 1868. And see Bank of California v. Shaber, 55 Cal. 322, holding that a claim for damages for injuries to property, caused by a mob or riot in San Francisco, was not to be presented in the first instance to the supervisors for allowance, as in the case of other claims; but a judgment must first be had, and thereupon the board must order it to be paid, unless they should determine to appeal. 6. See supra, § 90. 7. Dillwood V. Riecks, 42 Cal. App. 602, 184 Pac. 35. upon them is ministerial in character and not judicial or discretionary. The decisions lay down this general rule of liability and hold that before an official becomes liable for a breach of duty the duty must exist, and it must be such as not to involve the exercise of discretion on his part. While a county officer is not liable for mere failure to perform a duty committed to his discretion, yet, it has also been held in a late case that if he acts in execution of such discretion, his liability is the same as in the. discharge of a mandatory duty, and if he performs the act or discharges the duty in a negligent manner, he is liable in an action for damages by a person injured thereby. "Whether the duty performed be discretionary or compulsory there is no reason why like consequences should not follow the negligent performance of the duty.' 8. Ham v. Los Angeles County, 59 Cal. Dec. 474, 189 Pac. 462; South v. County of San Benito, 40 Cal. App. 13, 180 Pac. 354. It has been pointed out that such a rule of liability is first suggested, though not determined in a case, where Justice Field, in holding that no cause of action was created against a county by negligence of its officers in the performance of their duties, said, by way of dietum: "If any remedy exist for injuries resulting from neglecting to keep such bridges in repair, it must be sought either against the road overseers or supervisors personally." Huffman v. San Joaquin County, 21 Cal. 426. 9. Ham v. Los Angeles County, 59 Cal. Dec. 474, 189 Pac. 462; South v. County of San Benito, 40 Cal. App. 13, 180 Pac. 354, holding that the construction of a bridge between two counties is not a ministerial duty enjoined upon the supervisors by section 2713 of the 9910 Political Code where it does not appear that the supervisors of the two counties had come to an agreement as to the proportion of cost to be borne by each county, or that there was any available fund for the construction of the bridge. See BRIDGES, vol. 4, p. 513. It has been said that a fair application of the rule would be that any duty is ministerial which unqualifiedly requires the doing of a certain thing. To the extent that its performance is unqualifiedly required, it is not discretionary, even though the manner of its performance may be discretionary. Ham V. Los Angeles County, 59 Cal. Dec. 474, 189 Pac. 462, per Sloane, J. 10. Dillwood v. Riecks, 42 Cal. App. 602, 184 Pac. 35, per Chipman, P. J., holding that where county officers undertook to burn grass in an agricultural park owned by the county-a duty discretionary with them-such officers were liable § 93. Official Acts in Connection With Highways.—In the matter of repair of highways, there seems to be no longer a question under the decisions that road supervisors upon whom is imposed the duty of keeping highways in repair and to whom the means of carrying out this duty are available, are liable for a negligent performance of their duty, provided they have had statutory notice of the condition of the highway demanding attention.11 And if supervisors of a county are required to provide for the repair of highways by general orders delegating the execution of the work to a road overseer, and they fail to do this, and damage results from defects in the highway of which they have notice, they, and not the road overseer, would seem to be liable. But if the supervisors have given the necessary directions to impose this duty on the road overseer, and if they have no specific knowledge of his failure to perform his duty in some particular case, they are relieved from responsibility for the results of his negligence, and he alone is responsible. And it has been further declared that where the repairs are such that they cannot be made without special action by the supervisors, the road commissioner is not liable for delay in making them. Nor can the supervisors themselves be held liable in such a case where not only the method of repair, but also the time when the repairs should be made, or whether they should be made at all, rest in the discretion of the supervisors.12 for damages resulting from the performance of this work in a negligent manner. 11. Ham v. Los Angeles County, 31 Cal. App. Dec. 496, 808, 189 Pac. 462. And see Wurzburger v. Nellis, 165 Cal. 48, 130 Pac. 1052. But see South v. County of San Benito, 40 Cal. App. 13, 180 Pac. 354, holding that the supervisors of one county have no authority to repair highways in another, or to place warning signals thereon, and hence cannot be charged with liability under the provisions of the act of April 26, 1911, Stats. 1911, p. 1115. See HIGHWAYS. 12. Ham v. Los Angeles, 31 Cal. App. Dec. 496, 808, 189 Pac. 462, per Sloane, J. VII. FISCAL MATTERS. § 94. Legislative Control Over Revenue.-While the legislature has complete power of disposition over county revenues, 13 it cannot divest a right which is vested and determined.14 The construction of a statute which would have the effect of impairing the rights of third persons will always be unwillingly adopted, in the absence of express words to that effect.15 And while it is conceded that the legislature does not have authority to give money out of the county treasury to private persons who have no legal claim therefor, nevertheless it may by general law impose duties upon county officers and provide for them a compensation payable out of the county treasuries.16 Delegation of control.-The constitution provides that "The legislature shall not delegate to any special commission, private corporation, company, association or individual any power to make, control, appropriate, supervise, or in any way interfere with any county . . . improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments or perform any municipal function whatever," etc.17 But where the control and the appropriation of county money are the direct effect of a statute incident to the performance of the duties imposed upon certain officers by statute, such officers are not exercising a power to appropriate county money within the meaning of the constitution, but are merely performing administrative or clerical duties which are neces 13. People v. Williams, 8 Cal. 97; Laforge v. Magee, 6 Cal. 650. See Pol. Code, § 4085 et seq., as to the several funds of counties. 14. Laforge v. Magee, 6 Cal. 650. See as to vested rights, CONSTITUTIONAL LAW, vol. 5, p. 752. 15. People v. Williams, 8 Cal. 97. 16. Boss v. Lewis, 33 Cal. App. 792, 166 Pac. 843, holding that the sary to carry into effect the provisions of the statute.18 And it has been held that a statute empowering officers in certain classes of counties to appoint deputies whose salaries are to be paid out of the county treasury does not violate the constitutional provision that the legislature shall not delegate any power to control or appropriate county money.19 § 95. Power of the Supervisors. It is the declared policy of the law to confide to boards of supervisors the general supervision and control of the financial affairs of counties.20 Thus they have been given charge of the management and disbursement of the public revenues of the county. And it is their duty "to examine, settle, and allow all accounts legally chargeable against the county, except salaries of officers, and such demands as are authorized by law to be allowed by some other person or tribunal, and order warrants to be drawn on the county treasurer therefor." But a board is not empowered to create a debt or liability on the part of the county, for any purpose except as provided by law, or to divert the county revenues from their legitimate purposes. Formerly, the entire management of the financial business of counties, including the power of taxation and appropriation for county purposes, was vested in the courts of sessions.5 18. Boss v. Lewis, 33 Cal. App. 792, 166 Pac. 843. See in general as to delegation of legislative power, CONSTITUTIONAL LAW, vol. 5, p. 666. 19. Tulare County v. May, 118 Cal. 303, 50 Pac. 427. 20. White v. Mathews, 29 Cal. App. 634, 156 Pac. 372. See supra, § 41. 1. Contra Costa County v. Soto, 138 Cal. 57, 70 Pac. 1019; Laforge v. Magee, 6 Cal. 285. As to general 3 powers of supervisors, see supra, § 43 et seq. 2. Pol. Code, § 4041, subd. 12; White v. Mathews, 29 Cal. App. 634, 156 Pac. 372. See infra, § 105, as to allowance of claims. 3. Foster v. Coleman, 10 Cal. 278. 4. Potter v. Fowzer, 78 Cal. 493, 21 Pac. 118; Laforge v. Magee, 6 Cal. 285. 5. Burgoyne v. Board of Supervisors of County of San Francisco, 5 Cal. 9; Thompson v. Rowe, 2 Cal. 68. |
