HANDLER v. BOARD OF SUP RS OF SAN MATEO COUNTY (1952)

Plaintiff appeals from a judgment denying him a writ of mandate to compel the county auditor to approve and the county treasurer to pay his claim for legal services rendered to a private group of citizens in contesting before the State Public Utilities Commission an application of the Southern Pacific Company for permission to increase passenger fares from points between San Francisco and San Jose. Judgment was rendered upon sustaining a demurrer to the complaint on the theory that it was not a valid claim for which county funds could be expended.

Pending the hearing before the State Commission the County Board of Supervisors undertook to employ the plaintiff and his assistant as special assistants to the district attorney and to pay them the sum of $1,500, provided the legality of such employment could be established. And the only question presented on this appeal is whether the supervisors acted within the law when they authorized such employment.

In support of his contention that the services to be rendered were of a public nature appellant relies on a number of cases chiefly concerned with the powers of a municipality under the ‘municipal affairs' powers contained in their charters. It is well known that many city charters grant the cities power to expend municipal funds for what appear to be semi-private purposes such as the advertisement and exploitation of the city's resources and attractions. But where such activities have been confirmed the courts have uniformly relied on the ‘municipal affairs' clause of art. XI, section 6 of the Constitution.

But, when we come to the question of the powers of a County Board of Supervisors another question arises. It has been uniformly held that a county, as distinguished from an incorporated city, is but an agency of the state, that its powers are those delegated by the Constitution and by the legislature, and that they do not extend by implication beyond such delegation. In Irwin v. County of Yuba, 119 Cal. 686, 690, 52 P. 35, 37, it is said: ‘It may be safely stated as a rule that one who demands payment of a claim against a county must show some statute authorizing it, or that it arises from some contract, express or implied, which itself finds authority of law. It is not sufficient that the services performed, for which payment is claimed, were beneficial.’

No contention is made that any statewide legislation exists authorizing the supervisors to employ special counsel for the purpose of resisting increases in public utility rates. The district attorney, as an officer of the county, is in a sense a state agent deriving his powers and duties from the legislature. The number and the duties of his deputies are fixed by the legislature unless the charter prescribes otherwise. On the ancient doctrine of Zottman v. City and County of San Francisco, 20 Cal. 96, 102 that ‘The mode * * * constitutes the measure of the power’ it is incumbent on the appellant to follow the ‘mode’ before he can ask the supervisors to exercise the power of employing special deputies or assistants to aid the district attorney. Since there is no general statute authorizing the supervisors to make the employment the status of the appellant must be determined by an examination of the county charter.

The powers of the board of supervisors under the San Mateo county charter, St.1933, p. 2953 and Stats. 1943, p. 3146, in so far as they relate to the employment of deputies and assistants for county elective officers, are specified in Article III section 2, subds. (a), (b), (d), (f) and (j). Under subd. (a) the supervisors are authorized ‘To appoint, remove or suspend from office, in the manner and method herein provided, all appointive county officers, boards and commissions'. Under subd. (d) they are authorized ‘To provide, by ordinance, and therein to fix and regulate, the appointment and number of assistants, deputies, clerks, attaches, and other persons to be employed, from time to time, in the several offices of the county, and therein to prescribe and regulate the powers, duties, qualifications and compensation of such persons, the times at which, and the terms for which, they shall be appointed, and the manner of their appointment and removal’. Subd. (f) provides: ‘To provide, by ordinance, upon the recommendation of the county executive, for the creation of offices other than those required by the Constitution and laws of the state, and, upon the like recommendation, for the election or appointment of persons to fill the same, for the manner of such appointment, for the times at which and the terms for which such persons shall be so elected or appointed, and to prescribe their duties, and to fix their compensations.’ St.1938, Ex.Sess., p. 125.

Article V, section 2, subd. (f) relating to the powers of the county executive, reads: ‘To employ, by and with the approval of the board of supervisors, experts and consultants to perform work and advise, in connection with any of the functions of the county, when economically advantageous.’ St.1933, p. 2962.

Sec. 2 of Article VII reads in part: ‘Every elective county or township officer (i. e. District Attorney) shall have plenary power to appoint or remove his or their deputies, clerks, attaches or employees.’ St.1933, p. 2967. Section 3 of the same article provides: ‘The district attorney shall advise the board of supervisors and all county, township and district officers in all matters and questions of law pertaining to their respective functions, powers and duties, and, subject to the provisions of the general law empowering the board of supervisors to employ special counsel, shall have exclusive charge and control of all civil actions and proceedings in which the county, or an officer, board or commission of said county is a party, or is officially concerned or interested.’ St.1933, p. 2967.

That the procedure followed here did not comply with these provisions of the charter must be conceded. The employment was made by a resolution of the board appointing plaintiff and his assistant as ‘special assistants to the District Attorney.’ If additional assistants to the District Attorney were necessary or proper they should have been employed by the District Attorney under an authorization by ordinance of the board of supervisors. The resolution of employment does not comply with any of the terms of the county charter and hence it did not fix any legal liability on the county. Such being the case the controlled properly rejected the claim.

In view of our holding on this phase of the case it is plain obiter dictum to rule on the power of the county to expend county funds in resisting increases in private passenger fares to those of its citizens who used the railway mode of transportation to their homes and we express our views on that subject solely because it is the point so fully argued in the briefs. Concededly no express provision of the statutes or the county charter authorizes such expenditures. Proceedings before the Public Utilities Commission for increases in rates of fare for transportation, communication, and public services are frequent and have continued for a great many years. It is not unreasonable to assume that if the legislature desired to authorize the use of public funds to contest such increases it would have used some language expressing that purpose. But there is nothing in the general law or in the San Mateo County Charter which indirectly hints at such a purpose. It is the duty of the county controller to approve claims which are legal charges against the county and not others. It is not his function to determine whether the proposed expenditure might relate to some public welfare. If the law does not authorize it he cannot be compelled to approve it.

We have not been given any reference to any law authorizing the expenditure of public funds for these purposes and must conclude that the controller performed his duty in rejecting the claim.

Judgment affirmed.

NOURSE, Presiding Justice.

GOODELL, J., and PATTERSON, J. pro tem., concur.