MARIN COUNTY v. MESSNER (1940)

Section 4005b of the Political Code provides in part that whenever the board of supervisors shall, without authority of law, order any money paid as salary, fees, or for any other purposes, and such money shall have been actually paid, it is the duty of the district attorney to institute suit in the name of the county against such person or persons to recover the money so paid and twenty per cent damages for the use thereof. Acting in pursuance of the foregoing provisions the district attorney of Marin county instituted the present suit in the name of that county to recover certain sums of money paid by the county to defendant while he occupied the position of county surveyor, alleging that such payments were authorized by the board of supervisors and paid by the county treasurer without authority of law. The total sum originally sued for was $28,183, but by an amended complaint was reduced to $24,219.70. The trial court found in favor of the county on the issue of the illegality of the payments, but held that the three-year statute of limitations applied, and that therefore the county was entitled to recover only the moneys paid within the three years next preceding the filing of the complaint, which amounted to $4,122.50. Judgment was entered for that amount, without any allowance being made for damages. Each party has appealed, the defendant contending in support of his appeal that the payments were not illegal, or if so, that because of the circumstances hereinafter stated the county is estopped from suing for the recovery thereof; and in any event, that the two-year statute of limitations applies. The county contends in support of its appeal that the four-year statute of limitations governs, and that as a matter of law the county was entitled to twenty per cent damages on the amount recovered.

It appears from the evidence, which consists for the most part of written stipulations, that between February 3, 1927, and September 6, 1932, defendant presented to the board of supervisors and upon approval of said board the county treasurer paid some 507 separate claims, aggregating the amount here sought to be recovered. The claims so presented, approved and paid included two separate subject matters; first, mileage for the use of defendant's automobiles in transporting surveying parties—transit men, chain men, rod men, and field men, who were county employees working under defendant's direction—to and from the location of county construction and repair work and operations; secondly, for rental of surveying and engineering equipment owned by defendant and used by said surveying parties in and upon county work. The claims for transportation were at the rate of fifteen cents a mile for each mile traveled until about September 4, 1929, and thereafter at the rate of ten cents a mile. The claims for rental of surveying and engineering equipment were at the rate of $2.50 per day for each unit of equipment so used. It further appears, and the trial court in effect so found, that the claims were presented, approved and paid pursuant to an arrangement made between the board of supervisors and defendant at the board's request, at a regular meeting of said board held in December, 1926. The arrangement was brought about in this manner: Defendant was elected surveyor at the August, 1926, primary, and at the following general election in November the county voted a bond issue of $1,250,000 for road construction, which was subject to the engineering control of the county surveyor. At its regular session in December the board called defendant before it and in open meeting informed him of a working agreement then existing between the board and the surveyor whereby the surveyor transported the men working under his supervision in automobiles owned by him and furnished surveyor's equipment for their use at an allowance from the county of fifteen cents a mile for the use of the automobiles, and $2.50 a day of actual use for each complete unit of engineering equipment. Defendant at first objected to a continuation of the arrangement, stating that he had no such transportation facilities or surveying equipment as would be required to take care of the work contemplated under the bond issue. The board then informed him that it did not want the county to spend the money for the purchase of the automobiles and equipment for the reason that the county would no longer have use for the same after completion of the road work under the bond issue, and that defendant would be in a better position to dispose of the automobiles and equipment than the county. Thereupon defendant agreed to proceed in accordance with the board's wishes, and in connection therewith it was further understood and agreed that the moneys thus to be paid to defendant would not provide any profit to defendant, but would compensate him only for the actual, necessary and proper expenses of transportation and performing said engineering work. In consummation of the agreement a motion was unanimously approved that such arrangement be continued with defendant for the duration of his occupancy of the office, but subsequently and at the same meeting the motion was withdrawn on the advice of the county clerk that such motion was unnecessary because the arrangement was merely a continuation of the system then in force. In September, 1929, the rental for the use of the automobiles was reduced from fifteen to ten cents a mile, but otherwise the arrangement so entered into remained unchanged, and in accordance therewith monthly claims were presented, allowed and paid for such mileage and rentals up to September, 1932.

At the trial it was stipulated that each charge made by defendant and each item of every claim allowed and paid involved an actual and necessary transportation or use of the surveying equipment in performing the necessary duties of the office of county surveyor by defendant and said survey parties, in the sense that such transportation and use of engineering equipment were necessary, and that either the county or the defendant was bound to incur the expense therefor, either in the amount charged or some other amount; that the action of the board in allowing the claims was final and binding as to the amounts “if the board of supervisors had jurisdiction to allow anything on these items”.

Section 920 of the Political Code as enacted in 1921 is as follows: “Members of the legislature, state, county, city, and township officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members; provided, that when traveling expenses are allowed by law to any such officer, he may contract with the appropriate authorities for an allowance or mileage rate for the use of vehicles owned or rented and used by him in the performance of duty, in lieu of the usual transportation charges.” It will be observed that the single exception noted by the section granting the right to contract is restricted to the matter of an allowance for the use of the vehicles; and it is the county's contention that neither under said exception nor any other statutory enactment did defendant have the right to contract with the county for the use of his automobiles except for his own personal transportation; and that there is no statutory justification whatever for that portion of the agreement relating to the rental of the engineering equipment; that therefore the entire agreement was made in violation of express statutory enactment, and the principle of public policy that officers shall not have a personal pecuniary interest in public transactions. In behalf of defendant it is contended that if the payments were authorized by statute they are legal, regardless of the question of the existence of any previous valid agreement between him and the board. Conceding that to be true, we are unable to agree with defendant that the pertinent statutory enactments here involved warrant a construction contrary to the one placed upon them by the trial court.

In this regard it appears that when defendant took office in January, 1927, the County Government Act applicable to Marin county provided that the surveyor should receive “such fees as are now or may be hereafter allowed by law” (Stats.1925, p. 693). That provision was superseded by an amendment effective July 29, 1927, which provided that thereafter the surveyor should receive an annual salary of $4,000 “and in addition thereto he shall receive his actual traveling and other necessary expenses incurred by him while engaged in work for the county” (Stats.1927, p. 1157). The act was again amended in 1929, and it contained the same provision as to the compensation for the surveyor as the 1927 act, but provided also for the appointment by the surveyor of two transit men at $9 a day and three at $8 a day, to be paid as other county officers; also that the surveyor should devote his entire time to the county (Stats.1929, p. 993). In 1931 the county was reclassified but no change was made in the existing provision relating to the office of surveyor (Stats.1931, p. 1078). Furthermore, since 1907 section 4044 of the Political Code has provided: “The board shall provide, for the use of the surveyor, a suitable office, office furniture, heat, light, and care for the same, office and record books, and other necessary material, also all necessary expenses and transportation on work performed in the field.” (The remaining portion of the section was declared unconstitutional as being an attempt to delegate to boards of supervisors the power to fix the compensation of the surveyor. Arnold v. Sullenger, 200 Cal. 632, 254 P. 267.)

It is well settled that fees and compensation of public officers, being of statutory origin, may be collected and retained only when they are specifically provided by law; moreover, the laws granting the same are to be strictly construed in favor of the government; and where ambiguity arises and the enactment admits of two interpretations the rule of strict construction in favor of the government must be applied. Irwin v. County of Yuba, 119 Cal. 686, 52 P. 35; City of Corona v. Merriam, 20 Cal.App. 231, 128 P. 769; County of San Diego v. Bryan, 18 Cal.App. 460, 123 P. 347; County of Santa Barbara v. Rucker, 35 Cal.App. 676, 170 P. 860; County of Santa Barbara v. Twitchell, 179 Cal. 772, 178 P. 945. Here the three county government acts above referred to provided merely that “in addition thereto [referring to the annual salary] he shall receive his actual traveling and other necessary expenses incurred by him while engaged in work for the county” (italics ours); and it is apparent that the provisions of section 4044 of the Political Code do not in any way enlarge upon the provisions of the County Government Act. Fairly construed, therefore, in the light of the legal rules above cited, the language employed imports a clear legislative intent to limit the matter of traveling and other necessary expenses therein mentioned to such as are incurred personally by the surveyor. Any other construction would seem to do violence to the wording of those provisions. That being so, there is no legal ground upon which those provisions may be extended judicially to include also expenses incurred by the surveyor for the transportation of county employees working under his supervision, much less rentals for engineering equipment used by said employees.

If it had been the intention of the law-making body to include therein the traveling and other expenses of the surveyor's assistants and other employees of the surveying party, it could easily have been accomplished by the use of appropriate language to that effect, as was done in the cases of several other counties. For example, the provision relating to Mendocino county (Stats.1931, p. 1120) reads: “The surveyor shall also be paid the actual and necessary expenses of transportation of himself, his deputy and surveying crews, and subsistence of himself and deputy, all while in the field.” And in the case of Siskiyou county the provision reads (Stats.1931, p. 1124): “* that said county surveyor shall be allowed all necessary transportation and expenses incurred by himself or deputies for work performed in the field.” The provisions relating to some of the other counties have been framed in substantially the same language. Moreover, the fact that in the provisions relating to other counties the legislature expressly granted the right of the surveyor to be paid also for the transportation and subsistence of the members of the surveying party working under his supervision, may be taken as evidence of a legislative interpretation that such right did not exist under the general section 4044 of the Political Code; otherwise it would not have deemed it necessary to include the same in provisions relating to particular counties.

Defendant has cited in support of his position the cases of Victors v. Kelsey, 31 Cal.App. 796, 161 P. 1006; Darrah v. County of San Joaquin, 103 Cal.App. 76, 283 P. 962; and Severance v. Ball, 93 Cal.App. 56, 268 P. 1068. A review of the cases proves, however that they are not in point. The first two involved the matter of expenses incurred by the district attorney in connection with the prosecution of criminal cases, which is specifically authorized by a general statute (subd. 2, sec. 4307, Pol.Code) which reads: “The following are county charges: * 2. District attorney and sheriff. The traveling and other personal expenses of the district attorney and the sheriff incurred in criminal cases arising in the county, * and all other expenses necessarily incurred by either of them in the detection of crime, and in the prosecution of criminal cases *.” In the Darrah case it was held that under the foregoing code provisions the expense of employment of detectives was a proper county charge, and when advanced by the district attorney was recoverable by him from the county in his own name. As will be noted, the above code provision covers two separate and distinct subject matters, first, the traveling and other expenses of the officer himself, and secondly, other expenses incurred by him in the detection of crime and the prosecution of criminal cases; whereas the provision of the County Government Act here under consideration covers but one subject matter, to-wit, the traveling and other expenses of the officer. Moreover the expenses so recoverable by the district attorney and the sheriff are not made part of the legislative act fixing the compensation of such officers, but are declared to be county charges, in a general statute which designates also as county charges fourteen other items unrelated to either of those offices; whereas in the case of the surveyor the expenses allowed are declared to be compensation in addition to his annual salary. In the Victors case it is held merely that the determination by the board of supervisors in approving the claims for expenses was final upon the question as to whether the items allowed constituted “necessary expenses”. In Severance v. Ball, supra, certain employees of the surveyor's office filed claims against the county for their services, and the major question there presented and decided was whether the payment of such claims constituted an increase in the compensation of the county surveyor, and therefore was illegal. No such question is here presented.

Nor is there any merit in defendant's contention that if there was a contract, express or implied, between him and the board of supervisors, it was made by him in his private and not in his official capacity. The general rule is that “Any direct or indirect interest in the subject matter is sufficient to taint the contract with illegality, if the interest be such as to affect the judgment and conduct of the officer either in the making of the contract or in its performance.” 2 Dillon on Municipal Corporations, p. 1146. In the present case the agreement was made with defendant solely because of his official position as county surveyor, and was carried out by him as such. It was intended that the automobiles and engineering equipment which were the subject of the agreement were to be used and they were used in performing county work, planned and supervised by defendant in the exercise of his duties as county surveyor; and the claims were filed by him while he occupied that position. Therefore the case is no different in principle from Osburn v. Stone, 170 Cal. 480, 150 P. 367, and must be governed by the doctrine stated therein.

Likewise without merit is defendant's point that the action herein constitutes an illegal collateral attack upon the decisions and quasi-judicial determinations of the board of supervisors. It is quite true that where jurisdiction is vested in the board to determine questions of fact, such as whether particular claims have been necessarily incurred, and the claims are valid on their face, the action of the board in approving the same is not subject to collateral attack. The cases cited and relied upon by defendant are to that effect. But that doctrine has no application where, as here, the board has acted without jurisdiction and allows claims which upon their face are invalid, and expressly prohibited by law. In such cases the approval of the board adds nothing to the validity of the claims and they are subject to attack under the provisions of section 4005b of the Political Code. County of Alameda v. Evers, 136 Cal. 132, 68 P. 475; County of Shasta v. Moody, 90 Cal.App. 519, 265 P. 1032.

Defendant's contention that the county is estopped from recovering the moneys paid is based principally upon the premise that the action is one upon an implied equitable contract for money had and received; that in equity and good conscience the moneys sought to be recovered do not belong to the county, and that therefore the doctrine of equitable estoppel precludes the county from recovering any part thereof. The case of County of Sacramento v. Southern Pacific Co., 127 Cal. 217, 59 P. 568, 825, is mainly relied upon in support of the foregoing contention. Obviously, however, the action is not one upon an implied equitable contract, but as already pointed out is a statutory action based on Political Code section 4005b, wherein it has been shown that the board and the defendant acted, although perhaps innocently, in violation of statutory mandate. Under such circumstances the doctrine of equitable estoppel declared in the case cited has no application.

With respect to the disputed question as to which of the three statutes of limitations must govern, it will suffice to say that the action is not one, as contended by defendant, upon an implied contract for money had and received, wherein the two-year statute is controlling; nor is it one, as contended for by the county, to recover money from an involuntary trustee, wherein the four-year statute applies. As heretofore stated, it is an action based upon a liability created by statute, to-wit, section 4005b of the Political Code; and therefore, as held by the trial court, the three-year statute (sec. 338, subd. 1, Code Civ.Proc.) is controlling.

The second point made by the county in support of its appeal, that in addition to the recovery of moneys paid it was entitled as a matter of law to an additional judgment for twenty per cent damages, cannot be sustained. While said section 4005b makes it the imperative duty of the district attorney to institute suit for the recovery of moneys alleged to have been illegally paid “and twenty per cent damages for the use thereof”, there is no mandatory duty imposed upon the court by statute or judicial decision to impose such damages. Therefore the matter of awarding damages rested in the sound discretion of the trial court; and in view of the facts it cannot be said that such discretion has been abused.

The judgment is affirmed. The plaintiff will recover its costs on the defendant's appeal, and the defendant will recover his costs on the plaintiff's appeal.

I dissent.

The majority opinion has carefully, fully and fairly set forth all the pertinent facts, and all the pertinent statutory provisions. I agree with that opinion in so far as it holds that there is no statutory authority for the contracting by the surveyor for the rental of engineering equipment by him to the county. I agree also with the discussion of the statute of limitations and the applicability of the doctrine of estoppel, and with the discussion of the 20 per cent penalty. I disagree with the opinion only in so far as it holds that the surveyor was not legally entitled to recover for transportation furnished by him to his employees. It is my opinion that sections 920 and 4252(12) of the Political Code, properly interpreted, authorize the mileage rate allowance for transportation of necessary workers.

Section 4252(12) provides that the surveyor shall receive a designated salary “and in addition thereto he shall receive his actual traveling and other necessary expenses incurred by him while engaged in work for the county; *”. What are “other necessary expenses incurred” by him? Under prior decisions of the courts of this state this is no longer an open question. Without reference to whether defendant could personally recover for transportation furnished his employees by himself, the cases clearly establish that under such a section the county surveyor could lawfully incur county liability for transportation of workers as a “necessary” expense. Stated another way, the courts have established the right of county officers under sections similar to section 4252(12) to make arrangements with third persons to hire necessary workers and to bind the county by such agreement. Thus in Langdon v. Koster, 157 Cal. 39, 106 P. 209, the district attorney secured a writ of mandate to compel the auditor of the county to audit the demand of petitioner for expenses incurred by him in hiring detectives. It was held that section 4307(2) of the Political Code, which provides that the traveling expenses of the district attorney and sheriff “and all other expenses necessarily incurred by either of them” in the detection of crime and in prosecution of criminal cases are county charges, authorized the district attorney to incur the expense. The same reasoning and result was arrived at in Darrah v. County of San Joaquin, 103 Cal.App. 76, 283 P. 962 and Fulkerth v. County of Stanislaus, 67 Cal. 334, 7 P. 754. In the above three cases the county officer himself brought the action. There are many other cases under that section where the claimants who furnished the services contracted for by the sheriff or district attorney were permitted to maintain the action. Thus, in Victors v. Kelsey, 31 Cal.App. 796, 161 P. 1006, it was held that the district attorney could lawfully contract under the above section for the services of an expert witness; in County of Yolo v. Joyce, 156 Cal. 429, 105 P. 125, that a district attorney could lawfully bind the county for charges incurred in transcribing testimony in a criminal case; in Cunning v. County of Humboldt, 204 Cal. 31, 266 P. 522, that a district attorney could lawfully contract for detective services. Reference could be made to many other cases. They all hold that the expenses involved were authorized under that portion of section 4307(2) of the Political Code providing that the district attorney or sheriff is entitled to “all other expenses necessarily incurred by either of them in the detection of crime”. Do these cases not conclusively establish that the similar phrase in section 4252(12) of the same code to the effect that the surveyor shall receive his “other necessary expenses incurred by him while engaged in work for the county” permit the surveyor to contract with third persons to transport the workers? No other reasonable construction is possible. Although the language employed in the two sections differs slightly, both are dealing with what are necessary expenses. The interpretation of the two sections, in my opinion, should be the same.

If it once be conceded that under section 4252(12) of the Political Code the surveyor could lawfully contract with third persons for the necessary transportation of his employees, then it follows that under section 920 of the Political Code he can lawfully collect such transportation charges when they are personally furnished by him. That section, after prohibiting public officials from being interested in any contract made by them in their official capacity, contains the proviso that “when traveling expenses are allowed by law to any such officer, he may contract with the appropriate authorities for an allowance or mileage rate for the use of vehicles owned or rented and used by him in the performance of duty, in lieu of the usual transportation charges”. Note that the opening clause is that “when traveling expenses are allowed by law”. It does not say “when his traveling expenses are allowed by law”. The expression “traveling expenses” includes not only his personal traveling expenses, but also allowances for transportation of county workers which come within section 4252(12) of the Political Code. This is also indicated by the use of the plural “vehicles” later in the section. That clearly indicates that there might be the simultaneous use of several cars, which in turn indicates intent to allow a mileage rate for transportation of persons other than the surveyor himself. The interpretation of the words “traveling expenses” in the opening clause of section 920 as including transportation charges for other necessary workers is fortified by the presence of the words “transportation charges” as the concluding words of the section. The section does not read that the officer shall receive mileage in lieu of his usual traveling expenses, or in lieu of his usual transportation charges, but “in lieu of the usual transportation charges.”

I believe that this is the only reasonable construction to be placed on the two sections. While I quite agree that fee, compensation and expense statutes should be strictly construed, that does not mean that a court is compelled to so construe such statutes that they will constitute a trap for public officials acting honestly and reasonably. It must be remembered that, under section 71 of the Penal Code, defendant herein could have been criminally prosecuted for having misinterpreted the section. After conviction he could have been fined not more than $1,000, or imprisoned for not more than five years, and been forever disqualified from holding any state office. Moreover, under section 4005b of the Political Code the 20 per cent penalty discussed in the majority opinion could have been imposed. It must also be remembered that the board of supervisors and apparently its then legal advisor, as well as defendant, interpreted these sections as they are interpreted in this dissent when the contract was entered into. There is no question but that defendant and the board acted honestly and reasonably. It was stipulated that defendant made no profit on the deal. Under all these circumstances it seems to me that the cases involving the interpretation of section 4307(2) of the Political Code are controlling. It is quite significant that no case involving the interpretation of the same or similar language as that contained in section 4252(12) is cited in the majority opinion.

KNIGHT, Justice.

I concur: WARD, J.