7. Where the account of a deputy assessor for $1,650, was audited and allowed by the board, and ordered to be paid, in the following words: "Ordered, the sum of $4,125, be paid out of the fund for current expenses, to equal $1,650, in cash, at the rate of forty cents per dollar;" and in pursuance of such order the county auditor drew his warrant for $4,125, upon the treasurer, who indorsed and entered it in its order of presentation among the legal warrants against the county; Held, that the order was made without authority, and was void, and the fact that the market value of county warrants was only forty per cent. of the nominal amount, and the object of the board was to make it equivalent to cash, did not justify their action. Id. 8. The provision of the statute organizing boards of supervisors, which empowers them to "require new bond of any county or township officer, with additional securities whenever they deem the same necessary," does not leave the exercise of the power to their arbitrary discretion; but means whenever their judgment pronounces after an examination of the facts, that there is necessity for further security. People v. Supervisors Marin Co. 10 Cal. 344. 9. In determining upon the sufficiency of the bond of an officer, and whether the officer by failing to file a new bond, has vacated his office, the supervisors exercise powers of a judicial character. Id. 10. An order of the supervisors requiring a new bond of an officer, should specify the gound upon which the order is made; and where the order was as follows: "Ordered, by the board of supervisors, that John De Fries, constable of San Rafael township, file another bond with two or more sufficient sureties, within fifteen days;" it was fatally defective. Id. 11. The supervisors have no power to declare an office vacant. Id. 12. The ninth section of the act of 1855 "to create a board of supervisors, etc." which requires the property of the county to be sold at auction, does not apply to choses in action. Beals v. Evans, 10 Cal. 459. 13. The board of supervisors cannot settle with the county treasurer at a special meeting of the board, unless they have first given public notice of such meeting, and specified in such notice that such business would be transacted. El Dorado v. Reed, 11 Cal. 130. 14. The board of supervisors possess no power to allow the auditor compensation for the issuance and cancellation of warrants drawn on the treasurer. People v. Supervisors El Dorado Co. 11 Cal. 170. The power of the board to allow accounts, is confined to those "legally chargeable," and such a claim is not authorized by law. Id. 15. They have no power to direct the treasurer to pay warrants in violation of the statute. McDonald v. Maddux, 11 Cal. 187. 16. It was not the intention of the act of 1855, creating boards of supervisors, to change the order in which county warrants should be paid, viz., according to their registry. McCall v. Harris, 6 Cal. 281. 17. A board of supervisors has no power to set apart a portion of the revenue of the county, as a fund for current expenses. Laforge v. Magee, 6 Cal, 285. Nor can they change the order of payment of warrants. Id. See People v. Bircham, 12 Cal. 50. People v. San Francisco Co., Id. 300. TOWNS-INCORPORATION Of. Act of March 27, 1858, to amend Section twelve of "An Act to provide for the Incorporation of Towns," approved April 19, 1856. Sec. 1. Section twelve of said act is amended to read as follows: ART. 527, Sec. 12. The manner of making assessments and collecting town revenue shall be prescribed by ordinance. Real estate sold for taxes shall be sold to the person offering to pay the taxes and costs on the same, and who will take the real estate sold therefor, for the shortest period of time; and deeds made therefor shall be as effectual as if made by the sheriff under execution, to convey the property for the time specified in the deed. ARTICLE TREASURER-STATE.36 ARTICLE 528. Authorized to indorse certain controller's warrants. 531. 8. All claims against state to be examined. 9. 529. Authorized to receive from county treasurers cer tain evidences of state indebtedness. 530. Repeal of sixth section of act concerning the receipts, etc., of state. 531. 1. Board Examiners. 2. Duties. 3. Monthly affidavit of condition of treasury. 4. Duty controller and treasurer. 5. Claims to be approved by board before warrants drawn. 6. Duty of board when controller is about to draw warrants unlawfully. 7. Penalty for violation of act. Presentation of claims. 10. Action on claims. 11. Appeal from decision of board. 12. Chairman of board. Attendance of witnesses. 13. Powers of board in establishing rules for its government; administration of oaths; taking depositions, etc. 14. Penalty for false swearing before board. 15. Sessions of board. 16. Rehearing before board. 17. Quorum. Clerk. 18. Salaries. Act of March 3, 1858, authorizing the State Treasurer to Indorse certain Warrants. ART. 528, Sec. 1. The treasurer of state is hereby authorized and required to indorse any controller's warrants which any former state treasurer may have neglected or omitted to indorse, and which may now be an equitable indebtedness against the state, under the funding act, approved April twenty-eighth, one thousand eight hundred and fifty-seven, but not a legal indebtedness in consequence of said indorsement not having been made. Act of April 24, 1858, concerning County Treasurers. ART. 529, Sec. 1. The treasurer of the state is hereby authorized and directed to receive from the county treasurers of this state, all indebtedness of the state, received by them prior to the fifteenth day of March, one thousand eight hundred and fifty-seven, under the authority of sections four and five of the act of one thousand eight hundred and fifty-five, providing for the sale of swamp and overflowed lands, belonging to the state; provided, controller's warrants, received for taxes, by the treasurer of San Mateo county, prior to the fifteenth day of January, one thousand eight hundred and fifty-seven, shall be received from him by his complying with the section second of this act, not exceeding in amount five hundred dollars. Sec. 2. The state treasurer shall require of all county treasurers, paying warrants under this act, to make an affidavit that such warrants were actually received by them for the purposes named in this act, prior to said fifteenth January, one thousand eight hundred and fiftyseven, said affidavits to be filed in the office of the state treasurer. Act of April 24, 1858. ART. 530, Sec. 1. The sixth section of an act entitled an act concerning the receipts and expenditures of the state, approved February seventh, one thousand eight hundred and fiftyseven, is hereby repealed. Act of April 21, 1858, to Create a Board of Examiners, to define their Powers and Duties, and to impose certain Duties on the Controller and Treasurer. ART. 531, Sec. 1. The persons who fill and discharge the duties of the office of governor of this state, secretary of state, and attorney-general, are hereby appointed and constituted a board of examiners, with the power and duties hereinafter specified. Sec. 2. It shall be the duty of said board, as often as it may be deemed proper, to examine the books of the controller and the treasurer, the accounts and vouchers in their office, and to count the money in the treasury; and for the purpose of discharging the duties imposed on it by this act, the said board is authorized to demand, and the controller and treasurer are hereby required to furnish the said board, without delay, such information as it may demand, touching the books, papers, vouchers, or matters pertaining to, or cognizable in their offices, respectively; provided, that the counting of the moneys in the treasury shall take place at least once a month, without the said board giving the treasurer any previous notice of the hour or day of the said counting; and, provided further, that said board may, at any counting, place any sum in bags or boxes, and weigh each bag or box separately, and mark the same, with the weight thereon plainly specified, and place thereon a seal, to be kept by them; and shall, at subsequent countings, reweigh each bag or box separately; and if the weight shall correspond with the weight marked thereon, may estimate said sums as a part of the money counted by them, without making an actual count thereof. Sec. 3. Said board shall, at least once in each month, file an affidavit in the office of the secretary of state, showing the actual amount of money in the treasury at their last counting prior thereto, and shall cause a copy of said affidavit to be published in one daily newspaper published at the capital. Sec. 4. It shall be the duty of the controller and treasurer to permit the said board of examiners to examine the books and papers in their respective offices; and of the treasurer, to permit the moneys in the treasury to be counted whenever the said board may wish to make said examination or counting, without delaying said examination or counting, on any pretense whatever Sec. 5. The controller shall be authorized to draw his warrants on the treasurer for the salaries of officers, when appropriations are or shall have been made therefor by law; but, in all other cases, previous to drawing his warrants, in liquidation of any claim or demand whatever, examiners; and whenever, hereafter, the controller shall, by law, be directed to draw his warrant upon the treasurer of state for any purpose whatever, said direction shall be construed to be subject to the provisions of this act, unless said direction be accompanied by a special provision exempting it from the operations of this act. Sec. 6. Whenever the board shall have reason to believe, or shall be informed that the controller, with or without its approval, has drawn, or is about to draw, his warrant, without authority of law, or for a larger amount than the state actually owes, it shall be the duty of said board to notify the treasurer of state not to pay said warrant so drawn and registered, or to be drawn, and thereupon the treasurer shall be and hereby is prohibited from paying said warrant, whether already drawn, or when thereafter drawn, until he shall be otherwise directed by the legislature. Sec. 7. Any violation of the foregoing provisions of this act, by the board of examiners, controller, or treasurer, shall be deemed a felony; and, upon conviction thereof in a court of competent jurisdiction, the party convicted shall be sentenced to imprisonment in the state prison for a term not exceeding three years, and to a fine of not less than five hundred dollars, nor more than twenty thousand dollars; and whenever any indictment shall be found, under this act, against either of said officers, every such officer shall be temporarily suspended from his said office until such indictment is tried and such officer acquitted; and said office may be temporarily filled by appointment by the governor; provided, that in case of indictment of the governor, and his suspension from office, as one of the members of said board, as provided in this act, the powers and duties of his office shall, for the time being, devolve upon the lieutenant-governor and any final conviction obtained under this act shall, ipso facto, vacate the office held by the party so convicted, which shall be filled in the manner provided for by law. Sec. 8. It shall be the duty of said board of examiners to examine, and either approve or disapprove, all claims against the state which may be presented to them. Xstes Sec. 9. Any person or persons who may have or claim any demand whatever against the state, may present the same to the board of examiners, in the form of an account or petition, Z 30 (according to the nature thereof,) and may, at such time, and in such manner as said board shall prescribe by their rules, present his evidence to sustain said demand, and it shall be the duty of said board to indorse said demand, as required in section ten of this act. C+63 Sec. 10. If said board approve the demand mentioned in section nine, and an appropriation to meet the same shall have been made by law, then they shall indorse thereon, over their 6 signatures, "approved for the sum of dollars," and transmit the same to the office of the controller of state; or, if no appropriation shall have been made by law for the payment of said demand, then said board shall transmit the same to the legislature of this state, stating their approval of the same, and the reasons therefor; but if said board, or a majority thereof, disapprove said demand, they shall cause the same to be filed among the archives of said board, with a statement showing such disapproval, and the reasons therefor. Sec. 11. Any person or persons, interested, who may feel aggrieved by the disapproval of a demand by said board, may appeal from its decision to the legislature of the state; such appeal shall be taken by filing with said board a notice thereof, and upon the receipt of such notice, said board shall transmit said demand, and all the papers accompanying the same, with a statement of the evidence taken before it, to the legislature. No demand, or claim of any nature whatsoever, shall be entertained by the legislature, unless recommended by the board of examiners, or upon appeal from the action of such board. Sec. 12. The governor of the state (and the secretary of state, in his absence) shall act as chairman of the board of examiners, and as said chairman have power to issue subpenas and compel the attendance of witnesses before said board, in the same manner that any court in this state can compel the attendance of witnesses before it; and whenever, in the opinion of said board, the testimony of any witness against a demand pending before them is material, it shall be the duty of said chairman to cause the attendance of said witness before said board, to testify concerning said demand; and said board are hereby authorized to make such witness a reasonable allowance for such attendance, not exceeding the fees of witnesses in civil cases, which shall be paid from the contingent fund allowed said board; but in no instance shall an allowance be made in favor of a witness who testified in behalf of the claimant. Sec. 13. That the said board shall have authority to establish rules and regulations for its government; and each member thereof is hereby authorized to administer an oath or affirmation to any person or persons concerning any matter before said board, or intended to be brought before it; and each member of said board is hereby authorized to take the deposition or depositions of any witness or witnesses, to be used before said board in any matter pending before it. Sec. 14. That if any person shall knowingly and willfully swear falsely before said board, or any member thereof, in a matter pending before said board at the time of taking said oath, or in a matter to be submitted to said board, such person shall be deemed guilty of perjury, and on conviction thereof, shall be subjected to the same pains, penalties, and disabilities, which now are or shall be hereafter by law prescribed for willful and corrupt perjury. Sec. 15. The said board shall hold sessions for the transaction of business, at least twice in each month, and shall cause a record of their proceedings to be kept; and any member thereof may cause his dissent to the action of the majority upon a matter brought before it, to be entered upon said record. Sec. 16. The said board shall not hear or entertain the second time a demand against the state which it has once rejected or which has been rejected by the legislature, unless such reasons shall be presented to said board as by the rules of common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial. Sec. 17. That a majority of said board shall constitute a quorum, and may, as such, discharge any of the duties specified in this act. Said board may appoint a clerk, whose duty it shall be to keep a true and correct record of all the proceedings had before said board. Sec. 18. That for the services herein specified, the person acting as governor, or filling that office, shall receive a salary of one thousand dollars per annum; the person filling the office of secretary of state, a salary of one thousand dollars per annum; and the person filling the office of attorney-general, a salary of fifteen hundred dollars per annum. The clerk of said board shall receive for his services the sum of twelve hundred dollars per annum. [Sec. 19 simply appropriates money for salaries and expenses. Sec. 20 simply repeals conflicting acts.] Sec. 21. The contingent funds of the senate and assembly are exempt from the provisions of this act.-[A. S. Jan. 29, 1859. JUDICIAL DECISIONS. 1. A warrant of the controller of state on the treasurer, in the absence of an exhausted specific appropriation, is void. Butler v. Bates, 7 Cal. 136. 2. A law requiring all persons holding warrants upon the treasury to present the same for registry before a certain day, or be forever barred from enforcing the payment thereof, is unconstitutional. Robinson v. Magee, 9 Cal. 81. WASHINGTON MONUMENT. Act of March 10, 1859, to aid in the erection of the "Washington Monument," in the District of Columbia. ART. 532, Sec. 1. For the purpose of aiding in the erection of the Washington Monument," in the District of Columbia, the controller of state is hereby authorized and required to draw his warrant on the general fund for one thousand dollars, in favor of the governor of the state of California, in the month of June of each year, and the treasurer of state is hereby authorized and required to pay the same, and the governor shall transmit said amount to the treasurer of the "Washington Monument Association," or to the proper officer or officers, to be applied to the erection of said monument. Sec. 2. The sum of one thousand dollars is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, for the purposes of this act. Sec. 3. The cost of exchange required to forward said amount shall be paid out of the fund for stationery, lights, fuel, etc., for the legislature, upon the order of the governor. WATER COMMISSIONERS. Act of April 13, 1860, to create a Board of Water Commissioners in the County of Merced, and define their duties. ART. 533, Sec. 1. The board of supervisors in the county of Merced are hereby constituted a board of water commissioners. Sec. 2. The duties of the commissioners shall be: First, to regulate the water-ditches used for irrigating and milling purposes in said county; Second, upon the petition of any person or persons interested, they shall lay out or cause to be laid out, by the appointment of an overseer, any ditch to be used for the purposes aforesaid, and where the water is to be used by more than one person to apportion the same according to the amount of labor or capital invested. Sec. 3. The commissioners and overseers shall be allowed and receive four dollars per day for each and every day engaged in laying out any water-ditch in the county, which shall be paid by the party or parties for whose benefit the same is laid out. Sec. 4. When water rises on land owned by any person, it shall not be subject to the provisions of this act; but in all cases after it has passed beyond the limits of said lands, it may be used as provided in this act. Sec. 5. In all cases the commissioners shall have the right of way to lay out and cut ditches through their county. Sec. 6. Any person using the water when it is not his right so to do, and when it belongs below him, and any person obstructing the water of any ditch, either by dam or otherwise, or who shall throw, or cause to be thrown, any filth into any such water-ditch, shall be deemed guilty of misdemeanor, and, upon conviction thereof, be fined in any sum not more than twenty dollars for the first offense, and fifty dollars for every subsequent offense of like nature, recoverable at the suit of the owner or owners of such ditch, before any justice of the peace of the township, to be appropriated to the payment of commissioners' and overseers' services, or repairing said ditch. Sec. 7. In case any persons or person shall be damaged by the breaking of any ditch, the parties using such ditch shall be liable for all such damages. Sec. 8. No persons or person shall direct the waters of any river, creek, or stream, from its natural channel, to the detriment of any person or persons using said waters below, on any such river, creek, or stream. Sec. 9. Any person or persons, who, under this act, shall conduct water by ditch or otherwise across private land or lands, and such person or persons cannot agree with the owner of said lands as to the amount of damages to be paid him therefor, the said person or persons so conducting water shall petition the county court of the county in which the land may be situated, briefly setting forth the facts of such disagreement, and praying the court to appoint three commissioners to assess the damages arising from the taking of such right of way; and such court shall thereupon appoint three disinterested persons, who shall have power to proceed to such premises and to determine all questions of damages to such land arising from such taking-to take testimony and to award the amount of damages to the person or persons entitled thereto, and for this purpose said commissioners shall have power to administer oaths. The commissioners shall make their report to the court, and the same shall be affirmed or set aside, for cause shown; and, if set aside, a new commission shall be appointed, who shall proceed in like manner; and as soon as such award shall be affirmed, it shall have the effect of a judgment, and execution may issue thereupon by the clerk of the court. Sec. 10. This act shall take effect from and after its passage. ARTICLE WATER COMPANIES. 534. 1. Certain provisions made applicable. 2. Rights in possessing, etc., lands, etc. Proceedings to appropriate lands, etc. 3. Privileges and franchises. ARTICLE 534. 4. Duties in furnishing water. Rates to be charg Act of April 22, 1858, for the Incorporation of Water Companies. ART. 534, Sec. 1. The provisions of an act entitled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thousand eight hundred and fifty-three, and the provisions of an act entitled an act to amend an act entitled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thousand eight hundred and fifty-three, and passed on the thirtieth day of April, one thousand eight hundred and fifty five, shall extend to and apply to all corporations already formed, or hereafter to be formed, under said acts, for the purpose of supplying any city and county, or any cities or towns in this state, or the inhabitants thereof, with pure fresh water. Sec. 2XAny company incorporated for the purposes specified in the preceding section, shall have the right to purchase, or to appropriate and take possession of, and use and hold, all such lands and waters as may be required for the purposes of the company, upon making compensation therefor. The mode of proceeding to appropriate and take possession of such lands and waters, when parties cannot agree upon a purchase thereof, shall be the same as prescribed in sections twenty-seven, twenty-eight, and twenty-nine, of an act to provide for the incorporating of railroad companies, passed April twenty-second, one thousand eight hundred and fiftythree, except that such proceedings shall be had before the county judge of the county in which such lands or waters, or both, may be situated; provided, that all reservoirs, canals, ditches, pipes, aqueducts, and all conduits heretofore built, or that hereafter may be constructed by any corporation formed under this act, or claiming the privileges, rights, and immunities herein granted, or any of them, shall be used exclusively for the purpose of supplying any city and county, or any cities or towns, in this state, or the inhabitants thereof, with pure fresh water. Sec. 3. All privileges, immunities, and franchises, that may hereafter be granted to any individual or individuals, or to any corporation or corporations, relating to the introduction of fresh water into the city and county of San Francisco, or into any city or town in this state, for the use of the inhabitants thereof, are hereby granted to all companies incorporated, or that may hereafter become incorporated, for the purposes aforesaid. Sec. 4. All corporations formed under the provisions of this act, or claiming any of the priv ileges of the same, shall furnish pure fresh water to the inhabitants of such city and county, or city or town, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor, and shall furnish water, to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commissioners, to be selected as follows: two by such city and county, or city or town authorities, and two by the water company; and in case that four cannot agree to the valuation, then, in that case, the four shall choose a fifth person, and he shall become a member of said board; if the four commissioners cannot agree upon a fifth, then the sheriff of the county shall appoint such fifth person. The decision of a majority of said board shall determine the rates to be charged for water for one year, and until new rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act and the laws and constitution of this state. Sec. 5. Any corporation created under the provisions of this act shall have the right, subject to the reasonable direction of the board of supervisors or city or town authorities, as to the mode and manner of exercising such right, to use so much of the streets, ways, and alleys, in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part or parts thereof. |