Dana & Brother v. City of San Francisco

Opinion — Baldwin

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

We think that the plaintiff, counting alone upon the county scrip or warrants, as negotiable instruments, evidencing of themselves an indebtedness on the part of the county, cannot maintain his pretension. This seems to be decided by the case of The People v. Supervisors of El Dorado County (11 Cal. 170). The reason is, that *491the Auditor had no authority to draw a bill of exchange, but he can only, in certain cases, issue warrants upon the order of the Supervisors, or the allowance by the Board of an account, which is chargeable as a debt upon the county. The warrant is not intended to constitute a new debt, or evidence of a new debt, against the county, but is the prescribed means the law has devised for drawing money from the county treasury. It may be very true, that the warrant—as an open account—may be assigned, and the assignee be protected as the holder of a claim against the county. But this would be, not because the indorsement of the warrant carried with it the legal title of the scrip to the assignee, as an indorsee under the Law Merchant, but because the transaction would be, in equity, the assignment of the debt on which the scrip issued, and an authority to the assignee to receive the "money. The question here is, not whether the county had the power to make a bill of exchange, but whether the Auditor, when, under the statute, he issues a warrant, has the power to give it the form and qualities of such an instrument. We think he has not, and that the paper, as here presented, has no such effect, if indeed it was so designed.

If the plaintiff has a valid claim upon the county, it ought to be paid; but he must proceed to enforce it in some other mode.

Judgment affirmed.