Page images

such memorandum, would indicate that no power of the board coming from the act of the prejudicial error could be said to result froin Lerislature. the action of the court in permitting the

(Ed. Note.-For other cases, see Counties,

Dec. Dig. $ 50.*] memorandum for the purpose for which it


OF BOARD OF SUPERVISORS-STATUTES. [4] Appellant criticises the leading charac- There is no inconsistency between Pol. ter of certain questions permitted upon the Code, $ 4041, subd. 4, authorizing county boards trial. This is but a criticism of the action bridges, etc., to be built by the county surveyor,

of supervisors to order, in certain instances, of the court in the exercise of a discretion. and section 4041 [a] that the road commissionNothing in the record indicates an abuse ers or road overseers in their respective disthereof, and no prejudicial error will be pre- the conduct of work of any kind on all public

tricts shall employ all labor required and direct sumed.

roads, or section 26-15, providing that road [5] We see no error in the action of the commissioners under the direction of the board court sustaining objections to questions con- of supervisors must take charge of the bighways

within their respective districts and employ all cerning a policy of an entirely different men, teams, etc., and all help necessary to do character which was considered by the par- the work in their respective districts when the ties before application was made for the one

same is not let by contract, the former section actually issued. The policy which was is providing for an exceptional, the latter for the

ordinary condition. sued, and which is the basis of the action,

[Ed. Note.-For other cases, see Bridges, Dec. is in no sense ambiguous or uncertain in its Dig. $ 20.*] terms as to any matter involved in the is- 4. BRIDGES ($ 20*)–CONSTRUCTION-STATUTES. sues presented. There was therefore no rea- Pol. Code, $ 4041, subd. 4. authorizing son for explanation and no uncertainty there county boards of supervisors to order, in certain

instances, bridges, etc., to be built by the in warranting evidence of the character pro- county surveyor, is not inconsistent with section posed. The rights of the parties were to be 4074, providing that no county officer shall, exdetermined by the terms of the instrument cept for his own services, present any claim

against the county, etc., there being no conissued, and, being certain and unambiguous, tractual relation in such case, as the only comall parties were by its terms concluded. pensation the surveyor can receive is the fee We find no prejudicial error in the record, fixed by law for his services, though an addi

tional duty is cast on him. and the judgment and order are affirmed.

[Ed. Note.-For other cases, see Bridges, Dec.

Dig. $ 20.*] We concur: JAMES, J.; SHAW, J.


The presumption is that public officials will

do their duty. (15 Cal. A. 576)

[Ed. Note.--For other cases, see Evidence, McCARTHY V. BOARD OF SUP'RS OF Cent. Dig. $ 105; Dec. Dig. § 83.*]

MERCED COUNTY, et al. (Civ. 791.) Appeal from Superior Court, Merced Coun(District Court of Appeal. Third District, Cal. ty; E. N. Rector, Judge. ifornia. March 13, 1911. Rehearing De- Action by D. J. McCarthy against the nied by Supreme Court May 12, 1911.)

Board of Supervisors of the County of Mer. 1. BRIDGES ($ 20*)–CONSTRUCTION-BOARD OF сed and others. Judgment for defendants, SUPERVISORS POWERS —"CONTROL"-"SU

and plaintiff appeals. Affirmed. PERVISION.

Under Pol. Code, $ 4041, subd. 4, requiring F. G. Ostrander and J. J. Griffin, for apcounty boards of supervisors when the cost of construction of any bridge, etc., exceeds $500 to pellant. H. S. Shaffer, for respondents. advertise for bids, but providing that, on being advised by the county surveyor that the work BURNETT, J. The action was brought in can be done for less than the lowest bid, the the superior court of the county of Merced to board may reject all bids and order the work restrain defendants from constructing a steel done or structure built by days' work under the "supervision and control" of such surveyor, bridge over the Merced river in said county. the latter to be held personally responsible un- The court below sustained a demurrer to der his official bond to construct such structure

the complaint for the insufficiency of the at a cost not exceeding the lowest bid, the board did not exceed its power in directing the sur

facts to constitute a cause of action. Plainveyor on his being instructed to construct a tiff declined to amend his complaint, and bridge to purchase material therefor, “super-judgment was thereupon rendered in favor of vision" implying oversight, and the word “con- defendants, and plaintiff has appealed. trol" being used to authorize additional power, such as is contained in one of its definitions, The facts alleged in the complaint, which "to exercise a restraining or governing influence

we deem necessary for an understanding over, to regulate." (Ed. Note.-For other cases, see Bridges, Cent.

of the case, are as follows: A petition of Dig. $S 37-47; Dec. Dig. $ 20.*

the taxpayers of said county was presented For other definitions, see Words and Phrases, to the board of supervisors of said county vol. 2. pp. 1549–1552 ; vol. 8, p. 7617; vol. 8, praying for the construction of a bridge at a p. 6797.)

certain point over Merced river in Merced 2. Counties (8 50*)--CONSTRUCTION-POWERS county. At a regular session of said board, OF BOARD OF SUPERVISORS.

Such authorization was not an unwarranted held on the 9th of July, 1909, an order was delegation of authority by the supervisors; the I duly made by said board directing the county *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

surveyor to submit plans and specifications | lars they must cause to be prepared and for the construction of a steel bridge at the must adopt plans and specifications, straindesignated point, and to have the plans ready sheets and working details, and must adver-' for the next regular meeting of said board tise for bids for the construction of such in July. The plans and specifications were bridge, wharves, chutes or other shipping faprepared by the surveyor and submitted to cilities, unless otherwise provided by law, the board and were regularly accepted and in accordance with the plans and specificaadopted by said board on July 19, 1909. The tions so adopted. All bidders shall be afboard thereupon ordered the clerk of said forded opportunity to examine such plans board to advertise for bids for the construc- and specifications and said board shall award tion of said bridge in accordance with the the contract to the lowest responsible bidder, plans and specifications that were adopted. * provided, that after the submisThis was done, and certain bids were re-sion of the bids as herein provided, the board ceived and they were opened and inspected by of supervisors being advised by the county said board. At the same session of the board surveyor that the work can be done for a the county surveyor advised said board that 'sum less than the lowest responsible bid, it said bridge could be constructed for a sum shall then be their privilege to reject all bids less than the amount of the lowest bid, and and to order the work done or structure built thereupon the said board refused to award by days' work under the supervision and the construction of said bridge to the lowest control of the said surveyor; provided furresponsible bidder, or to any bidder, and ther, that the surveyor in such cases shall rejected all the bids and adjourned without be held personally responsible (under his oftaking further action as to the construc- ficial bond to construct said bridge or struction of the bridge. Thereafter, at a special ture) according to his plans and specifications session, held on October 6, 1909, called for at a cost not to exceed the amount of the the purpose of considering the construction lowest responsible bid received.”

It is perof said bridge by days' work under the direc- fectly apparent that the board did not extion and control of said county surveyor, the ceed the privilege granted by said section board unanimously adopted a certain resolu- unless in the command and direction to the tion which, after reciting the circumstance surveyor to purchase material for the said of the opening of the bids and the advice of structure, but even in this particular we are the county surveyor,"ordered that A. E. of the opinion that the action of the board Cowell, surveyor of Merced county, be and was entirely within the purview of said prohe is hereby authorized and directed to pro- vision. The work is to be done, not simply ceed and construct said bridge by days' work under the "supervision," but also under the according to his plans and specifications, control,” of the surveyor. "Supervision" and to purchase all necessary material for implies oversight and direction. “Control” the same.

* The said defendant A. E. must have been used to authorize additional Cowell, pursuant to the order of said board, power, such as is contained in one of its defiis proceeding, and threatens to continue to nitions, “to exercise a restraining or governproceed, to construct said bridge, and to con- ing influence over, to regulate.” How could tract for labor, material, and supplies neces- the surveyor govern or regulate the construcsary for the construction of said bridge, and tion of the bridge without a supervision over the said board of supervisors and the mem- the employment of labor and the purchase bers thereof are aiding and advising the said of material? He could supervise the strucA. E. Cowell in the construction of said ture by directing its completion in accordbridge and in contracting, and providing ance with the plans and specifications. He funds, for said supplies, labor, and materials could not "control” it without a directing out of the funds of said county and road dis- power as to the cost. This power manifestly trict and threaten to continue to so aid and could not be exercised without the privilege advise said Cowell and provide for said of employing the labor and purchasing the funds.” The said bridge will exceed in cost material. This view, that it was the intenof construction the sum of $500.

tion of the Legislature in the contingency [1] Respondents claim that authority for mentioned to clothe the surveyor with the their action is found in the language of sub- ample power suggested, is strengthened and division 4 of section 4041 of the Political confirmed by a consideration of the purpose Code. This is a part of the enumeration or of this alternative plan and of the bond rethe general powers of the boards of super-quired of the surveyor to do the work in acvisors in their respective counties, and it re- cordance with his advice to the board. The lates specifically to the maintenance, control, scheme was devised to protect the county construction, etc., of public roads, turnpikes, against collusion on the part of bidders or ferries, wharves, chutes, and bridges within the payment of exorbitant charges for such the county, and it provides that “when the public improvements. To indemnify the councost of the construction of any bridge, wharf, ty against loss in consequence of the award chute, or other shipping facilities that may to the surveyor, he is required to give a be built under the provisions of this subdi- bond to construct the bridge at a sum not to vision exceeds the sum of five hundred dol- exceed the lowest bid. It must be apparent

that no surveyor, without the privilege of have ordered the surveyor to do the work, hiring the labor and purchasing the material, the Legislature has given him express auwould enter into such an undertaking. By thority and made it his duty to comply with the construction contended for by appellant, said order. In brief, the case is this: The the manifest purpose of the law would there Legislature is the source of all power in the fore be defeated.

premises. In the first instance, it authorized [2] We can see nothing in the position of the board of supervisors to have complete respondent that implies an unwarranted dele control over the work. Subsequently it modigation of authority on the part of the super- fied this grant of power by authorizing, in a visors. In fact, there is no delegation of certain contingency, the county surveyor, authority whatever by the supervisors. The' when directed by the board, to perform this power of the board comes from the act of the public duty. The matter is for the LegislaLegislature. It may be admitted that, in- ture, and not for the courts. dependent of the provision in question, the

[3] There is no inconsistency between this Legislature has empowered the board of su- provision and the succeeding one providing pervisors to let the work to the lowest re- that the road commissioners or road oversponsible bidder or to do it themselves. But seers in their respective districts "shall emthe authority that confers power can with ploy all labor required and direct the conduct hold or withdraw it. It may take it away of work of any kind upon any and all public from one and confer it upon another, unless, roads,” or section 2645 of the Political Code, of course, there is some constitutional bar- providing that "road commissioners, under rier.

As to the power of the Legislature, the direction and supervision and pursuant Judge Redfield says: “It has never been to orders of the board of supervisors, must: questioned that the American Legislatures (1) Take charge of the highways within their have the same unlimited power in regard to respective districts, and shall employ all men, legislation which resides in the British Par- teams, watering carts, and all help necessary liament, except where they are restrained to do the work in their respective districts by written Constitutions. That must be con

when the same is not let by contract." The ceded, I think, to be a fundamental principle section before us provides for an exceptional, in the political organization of the American the other sections for the ordinary, condition. states. We cannot well comprehend how, The former is specific, the latter general in upon principle, it should be otherwise. The their operation. Manifestly the road compeople must, of course, possess all legislative missioner has general supervision over the power originally. They have committed this, roads, including the bridges, and he must atin the most general and unlimited manner, quired to keep the highways in proper condi

tend to repairs and to the many details reto the several state Legislatures, saving only tion. But by this later specific provision the such restrictions as are imposed by the Con- duty of the road commissioner has been modstitution of the United States or of the par- ified somewhat in a particular instance, and, ticular state in question." Thorpe v. Rut

reading these various sections together, it is land, etc., R. R. Co., 27 Vt. 142, 62 Am. Dec. easy to give effect to all of them without 625. Indeed, there is in our Constitution (article 11, $ 5) a specific command that the reach the conclusion that, in special cases

violating any principle of construction and to Legislature by general and uniform laws

requiring bids, the work may be let by the shall provide for the election or appointment board of supervisors to the lowest responsible in the several counties of boards of super- bidder or, to save expense, it may be done unvisors, sheriffs, county clerks, district attor- der the direction and control of the county neys and such other county, township and

surveyor. municipal officers as public convenience may

[4] Nor do we see anything herein inconrequire, and shall prescribe their duties and sistent with section 4074 of the Political Code fix their terms of office." In harmony with providing that “no county officer shall, except this mandate the Legislature has prescribed for his own services, present any claim, acthe duties of the supervisors and at various count or demand for allowance against the times has amended certain provisions of the county, or in any way except in the discharge statute, and in 1907 (Stats. 1907, p. 367) was of his official duty advocate the relief asked added this clause whereby in a certain con- in the claim or demand made by any other." tingency it was made the duty of the county The contention is that the said arrangement surveyor to do the work therein prescribed. constitutes a contract between the supervisIt is true that the board is not deprived of ors and the county surveyor and therefore all discretion in the matter. The law con- prohibited by the above-mentioned provision. templates that the supervisors shall act, of But we do not understand that there is any course, for the best interest of the public. It such contractual relation as the statute conis fitting that they should be advised by the templates. Under the circumstances mentioncounty surveyor who is presumably particu- ed, it rather becomes the official duty of the larly qualified for that duty. They may re county surveyor to perform the work. He ject his advice or they may supplement it by is to derive no profit therefrom, and the only independent investigation, but, when they compensation he can receive is the fee fixed by the law for his services. In other words, county expense should not be thwarted by it seems plain that by virtue of this provi- the courts. sion an additional duty is cast upon the The judgment is affirmed. county surveyor without any increase whatever of his compensation in those counties We concur: CHIPMAN, P. J.; HART, J. where he is paid a salary for his entire of. ficial service and in other counties with simply an allowance of the legal fee for his ac

(15 Cal. App. 567) tual work. Herein, as we view it, there is

PIERSON V. PIERSON. (Civ. 960.) nothing opposed to the letter or spirit of the (District Court of Appeal, Second District, Calilaw or in contravention of sound public pol

fornia. March 9, 1911.) icy.

DIVORCE (186*)-JUDGMENT-FINDINGS-NE(5] To the suggestion that respondents' con

CESSITY. struction of the law is likely to encourage Where parties to a divorce action have not great abuse and afford an attractive allure waived findings of fact, and the record shows ment for designing county surveyors, it is that no findings sufficient to support a judgment

were signed or filed in the action, the judgment sufficient to say that the presumption is that will be reversed. public officials will do their duty, although, [Ed. Note.-For other cases, see Divorce, admittedly, under any administrative scheme Dec. Dig. g 186.*] or system, gross wrong will sometimes be

Appeal from Superior Court, Los Angeles perpetrated against the public by dishonest County; William D. Dehy, Judge. men in official station. Neither is it a fair interpretation of the Pierson against Charles J. Pierson.

Action for divorce, brought by Carrie D.

Plainlaw to hold that it deprives the Legislature

tiff appeals. Judgment reversed, and cause of any part of its power to prescribe the du

remanded. ties of the county surveyor. These duties are set forth generally in sections 4214 to Winslow P. Hyatt, for appellant. Morton, 4220, inclusive, of the Political Code, but the Riddle & Hollzer and S. A. D. Gray, for reLegislature, by the provision before us, as spondent. before mentioned, has added an additional duty to be performed when directed by the PER CURIAM. Action for divorce. The board of supervisors. Nor in the work re parties hereto, through their respective atquired is there anything so foreign to the torneys, having filed a stipulation that regeneral scope of the functions of the county versible error exists in the record, and upon surveyor as to compel the inference that said examination of such record, it appearing duty could not have been contemplated by that findings of fact were not waived, and the Legislature. It is mostly, if not entirely, that no findings surient to support a judg. ministerial in its nature and of such a char- ment were by the court signed or filed in the acter that by training and experience the cause, it is therefore ordered that the judg. county surveyor should be specially qualified ment in the above-entitled cause be reversed, to perform it.

and the cause remanded for a new trial. Even upon the theory of appellant that the board of supervisors alone has the power to purchase material for the construction of the

(15 Cal. App. 496) bridge, it is doubtful whether the complaint

LAWSON v. LAWSON. (Civ. 935.) stated a cause of action, in view of the alle. gation as to the board of supervisors order- (District Court of Appeal, First District, Cali

fornia. Feb. 25, 1911. Rehearing Denied ing and advising the said A. E. Cowell in the by Supreme Court April 26, 1911.) construction of said bridge and in contract. 1. EXEMPTIONS ($ 16*)-DEBTOR'S EARNINGS ing therefor. If the supervisors are aiding -"FAMILY." and advising in the execution of the plan, it

Under Civ. Code, $ 206, requiring a child is not unreasonable to hold that Cowell is mother not living with her son is not strictly a

to support an indigent parent, and though a simply their agent in the purchase of the member of his family, where she is in poor materials and in the employment of the la health, destitute, is supported by him, and rebor. We would then have no more than sides within the state. she is a member of his

family, within Code Civ. Proc. $ 690, exempting what appellant says the Legislature intend- a debtor's earnings within 30 days preceding ed; that is, the selection of the county sur-attachment, when necessary for the use of his veyor “to supervise the construction of a "family." bridge when built by days' work to the end Cent. Dig. $$ 15-19; Dec. Dig. & 16.*

[Ed. Note.-For other cases, see Exemptions, that it should be constructed according to

For other definitions, see Words and Phrases, the plans and specifications adopted.” At any vol. 3, pp. 2673-2691; vol. 8, p. 7661.] rate, after a consideration of all the points 2. APPEAL AND ERROR (8 1212*)-REVERSALmade by appellant, most of which we have NEW TRIAL. mentioned, we are satisfied that they are

On reversal of an order declaring a debtor's more technical than substantial and that the trial court, it was not an abuse of discretion to

earnings exempt, and upon rehearing in the efforts of the officers in question to save the permit him to show facts relating to his moth*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes


er's dependent condition, though the proof was necessary for the use of his family, residing not made upon the former hearing.

in this state, supported in whole or in part [Ed. Note.–For other cases, see Appeal and by his labors.

Defendant claimed Error, Cent. Dig. § 4713; Dec. Dig. $ 1212.*] 3. Motions ($ 64*)-RES ADJUDICATA-SCOPE attached constituted his earnings, and that

the exemption upon the ground that the fund OF DETERMINATION.

The principle of res adjudicata is not the said earnings were necessary for the supstrictly applicable to motions.

port of his family residing within this state. [Ed. Note.-For other cases, see Motions, in substantiation of this claim, defendant Dec. Dig. § 64.*]

introduced evidence tending to show that he 4. MOTIONS (8 43*)–RENEWAL-JUDICIAL DIS-1 contributed to the support of his mother. CRETION. A granting or denial of permission to re- The evidence on this point discloses that,

a motion is discretionary with the trial while the defendant and his mother do not judge.

dwell under the same roof, she is neverthe[Ed. Note. For other cases, see Motions, less a resident of this state; that she is old, Cent. Dig. 88 55, 56; Dec. Dig. § 43.*]

in poor health, and unable to maintain herAppeal from Superior Court, City and self, and looks to defendant for her sole County of San Francisco; Thos. F. Graham, means of support. Upon this evidence the Judge.

court concluded that defendant's mother was Action by Sadie Lawson against Alfred B.

a member of his family, within the meaning Lawson. From an order, plaintiff appeals of the section quoted; and after careful conAffirmed.

sideration we are of the opinion that this See, also, 111 Pac. 354, 356; 115 Pac. 463. conclusion is sound and correct.

H. H. McPike and Crittenden Thornton, [1] Section 206 of the Civil Code imposes for appellant. Leon Samuels and Jacob S. upon a child the legal obligation to support Meyer, for respondent.

an indigent parent to the extent of his abil

ity. While in a strict sense, or perhaps we KERRIGAN, J. In an action for divorce, should say in a narrow sense, a mother not plaintiff obtained judgment against the de- living in the same household as her son is fendant, which provided, among other things, not a member of his family, yet where, as that defendant pay to plaintiff the sum of here, she is in poor health, destitute of prop$100 per month for her support and main- erty or the means of subsistence, is supporttenance. The defendant having failed to ed by him and resides within the state, we comply with this provision of the judgment, think she is a member of his family within the plaintiff took proceedings under section the meaning of the language employed in the 710, Code of Civil Procedure, and filed with section. Any other construction would make the auditor of the city and county of San the provisions of the law inconsistent; for, Francisco (defendant being at that time a on the one hand, it would require a son to justice of the peace of said city and county support his parent by reason of the family receiving a monthly salary of $300) a duly tie, and yet deprive him of an exemption authenticated copy of the judgment, where- specially created for the purpose of enabling upon said auditor paid into court the sum of him to discharge his obligations to his fam$1,200, the amount of salary at that time due ily. Furthermore, the question of whether defendant. In due time plaintiff moved the the parent occupies the same abode as the court for an order that the whole of this judgment debtor should not be the exclusive sum be paid to her in part satisfaction of test; for it is apparent that the debtor's said judgment. After hearing had, the court wife or children might not be living with ordered that of the sum of $600, representing him, and yet it would not be seriously condefendant's salary for two months, the plain- tended that they did not form part of his tiff be paid $400, and that $200 was exempt family. In Lawson v. Lawson, 111 Pac. 354. from execution and should be paid to de- the Supreme Court, after stating that the fendant. Plaintiff appeals from this order, language of subdivision 10 of section 690, and asks for its reversal upon the ground, Code of Civil Procedure, "for the use of his among others, that the defendant was not family residing in this state" clearly implies entitled to any exemption whatever; and that one may be a member of a debtor's famthis is the principal question to be deter- ily although residing apart from him, promined.

ceeded to say (speaking through Mr. Justice Section 690 of the Code of Civil Procedure Angellotti): “But it seems clear that they provides as follows: “The following prop- are the only relatives who can properly be erty is exempt from execution or attachment, held to be members of “his family' within the except as herein otherwise specially pro- meaning of the statute, with the possible exvided:

(10) The earnings of the ception of such other relatives as to whom judgment debtor for his personal services exists on his part the legal obligation of suprendered at any time within thirty days next port and maintenance.” In discussing this preceding the levy of execution or attach- question the Supreme Court of Alabama, in ment, when it appears by the debtor's affi- Sallee v. Waters, 17 Ala. 482, said: "To condavit or otherwise that such earnings are stitute a family within the meaning of the



*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

« PreviousContinue »