SKIDMORE v. GORGAS (1934)

This is a petition for a writ of mandamus to compel the auditor of Tuolumne county to audit a claim and issue his warrant therefor in payment of services which were performed pursuant to a written contract with the board of supervisors of that county.

The petitioner alleges that on December 7, 1931, he entered into an agreement with the county of Tuolumne upon the terms and conditions expressed in a resolution which was duly passed by the board of supervisors as follows:

“Be It Resolved, that C. E. Skidmore be and he is hereby authorized to check the tax records of Tuolumne County, California, of property on which the taxes were first delinquent for the fiscal year 1925-1926 or are delinquent for prior years, which do not show redemption, cancellation, or sale by the state, on deeds or certificates of sale; said party shall also submit reports covering all such delinquencies, together with recommendation as to further disposition of the same and shall submit lists upon which requests for authorization from the State Controller may be made to advertise and sell as provided for by section 3897 of the Political Code of the State of California.

“Said County of Tuolumne will pay said C. E. Skidmore for such services an amount equal to fifty per cent (50%) of the County of Tuolumne's portion of all moneys received by the said County of Tuolumne from and after this date for redemption or sale of said property above referred to, payments thereof to be made at the regular monthly meeting of the board for the allowance of claims, upon the statement of the County Auditor showing the amount paid in on redemptions and sales of property covered by this contract, subsequent to the last payment thereon; the final payment thereof to be made to said C. E. Skidmore when he has furnished an affidavit setting forth that he has checked, or caused to be checked, the records of the United States Land Office, the State Surveyor's office, the State Controller's office, County Auditor's office and County Recorder's office of the County of Tuolumne to the extent necessary for a complete performance of the things required to be done and performed by him under this resolution, and has also submitted to the Board of Supervisors of Tuolumne County his report and recommendations as hereinabove provided.

“Dated: December 7, 1931.”

On May 6, 1930, the petitioner entered into a similar contract with Tuolumne county, evidenced by a resolution of the board of supervisors in substantially the same language which is employed in the preceding quoted resolution.

The petition alleges that, pursuant to these contracts, the stipulated services were fully performed by checking the tax records of that county together with the records of the United States land office, the state surveyor's office, and the state controller's office, for the years specified, and by reporting to the board of supervisors the dates and amounts of all delinquent taxes, together with descriptions of the properties involved, the dates of redemptions from sales, and the amounts of taxes subsequently paid thereon.

Paragraph VII of the petition alleges that on January 12, 1933, a verified claim for the sum of $4,667.31, for services performed pursuant to the contracts heretofore mentioned, was presented to and allowed by the board of supervisors, but that the respondent refuses to audit or draw his warrant upon the county funds in payment of the claim. Paragraph IX of the petition alleges that “said county has moneys available for the payment of said claim and demand with which said warrant may be paid.”

The answer admits the allegations of paragraph VII of the petition, but denies that the county of Tuolumne has money available with which to pay the claim.

The respondent concedes the validity of the contracts which are involved in this proceeding, and the liability of the county for the payment of legitimate services of the petitioner pursuant to those contracts. Skidmore v. West, 186 Cal. 212, 199 P. 497. It is argued, however, that Exhibit C which is attached to the petition, and the claim which was allowed by the board of supervisors contain many items of taxes which were paid in transactions wherein the county officers had previously performed all the duties with relation thereto which the petitioner claims to have subsequently performed, and that the compensation of the petitioner should be confined to the labor necessary to secure the information designated in the contracts, exclusive of transactions wherein that service had been previously performed by the county officers.

It is impossible for us to determine from the record which items and charges as indicated by Exhibit C represent transactions in which the desired services were previously performed by the county officers. The respondent fails to designate these challenged items in his answer or otherwise. This information should be supplied to this court if the merit of this cause is to be determined in the light of that contention. The petition was filed in this proceeding May 24, 1934. The time allowed for filing the final brief has expired. No such brief has been filed. This court is without facts or adequate briefs upon which the merit of this proceeding may be determined.

The answer contains a flat denial that the county of Tuolumne has funds with which to pay this claim. No evidence was adduced as to the ability of the county of Tuolumne to pay the claim. It is an established rule of law that a writ of mandamus may be denied where there are no funds available with which to pay an alleged claim. Nelson v. Anderson-Cottonwood Irr. Dist., 51 Cal. App. 92, 196 P. 292; Sutro Heights Land Co. v. Merced Irr. Dist., 211 Cal. 670, 296 P. 1088; 38 C. J. 556, § 28; 18 R. C. L. 139, § 55.

The writ is denied.

Mr. R. L. THOMPSON, delivered the opinion of the Court.

We concur: PULLEN, P. J.; PLUMMER, J.