Ulysses S. Webb, Atty. Gen., Eugene W. Squier, Dist. Atty., Fred H. Schauer, Deputy Dist. Atty., and George H. Gould, all of Santa Barbara, for appellant. buck, of Santa Barbara, for respondents.

SLOSS, J. Demurrers to the complaint as amended having been sustained, and the plaintiff declining to further amend, judgFrom this judgment the plaintiff apment was entered in favor of the defendants.

peals.

The facts alleged, taken in connection with certain statutory provisions, present this situation: The defendant Nat Stewart was sheriff of the county of Santa Barbara for a term commencing on the 2d day of January, 1912. The defendant the Title Guaranty & Surety Company was the surety on Stewart's When Stewart took office his official bond. Section 4246, salary as sheriff was fixed by the Political Code at $6,000 per annum. subd. 2, amended 1909. same Code provided that:

"The salaries and fees provided in this title every kind and description rendered by the of* ** their depushall be in full compensation for all services of * and all deputies ties and assistants, ficers named in this title. employed shall be paid by their principals out of the salaries provided in this title, unless in this title otherwise provided.”

There was no provision for payment by the 2. SHERIFFS AND CONSTABLES 65-COM- county of any compensation to the deputies or

PENSATION-RECOVERY OF MONEY PAID.

Pol. Code, § 4005b, provides that when any board of supervisors shall, without authority, order any money paid and it shall have been actually paid, or whenever any county officer has drawn any warrant in favor of any person without authority and it shall have been paid, the district attorney shall institute suit against such person or persons to recover the money so paid. Held, that where a woman designated by

a sheriff to have charge of female prisoners was paid out of the county treasury, though the sheriff approved her claim and requested the board of supervisors to allow it, the money so paid could only be recovered from her and not from the sheriff, to whom it was not paid.

In Bank. Appeal from Superior Court, Santa Barbara County; Samuel E. Crow, Judge.

Action by the County of Santa Barbara against Domenica L. Janssens and others. From a judgment for defendants, plaintiff appeals. Affirmed in part, and reversed in

treasurer to Mrs. Janssens. Each of the | were first enacted. Pen. Code, § 1598, subd. claims was indorsed "O. K., R. D. Smith," 4, § 1599. Section 1616 gave further protecor "O. K., R. D. Smith, undersheriff." It tion to such prisoners, and was based upon is alleged that Stewart, as sheriff, requested considerations of propriety and decency too the board of supervisors to allow the claims, obvious to require explanation. The statute and that R. D. Smith was a deputy of Stewart, did not, however, assume to take such prisand as such deputy approved in writing the oners out of the custody of the sheriff. It claims as correct. merely regulated the manner in which he should perform that part of his duties which had to do with the care of females. We perceive no force in the argument of respondents based on the fact that the section provides that the sheriff shall "designate" some suitable woman. No different meaning could be given to the statute if it declared that the sheriff should "appoint" a woman. Whether "designated" or "appointed," the woman named is an assistant of the sheriff, performing a part of the duties imposed by law upon him.

By the prayer of its complaint, the county seeks judgment against the defendants for $1,249, the aggregate of such demands, together with 20 per cent. damages for the use of said money, and for costs. Pol. Code, 4005b.

[1] We think the appellant is right in its contention that Mrs. Janssens had no valid claim against the county for the services rendered by her. The question turns, primarily, upon a determination of the legislative intent in enacting Penal Code, § 1616, but a glance at some of our decisions touching the effect of article 11, section 9, of the Constitution, may be of aid in the task of interpretation. The constitutional provision is that:

"The compensation of any county officer shall not be increased after his election or during his term of office."

[2] Section 1616, as it read at the time of the transactions under consideration, was silent with respect to the compensation of the person thus put in charge of female prisoners. We cannot therefore assume that the Legislature intended, if it had the constitutional power so to do, to take the case out of the operation of the statute (Pol. Code, § 4290) providing that the sheriff's salary shall be in full compensation of all services rendered by him, his deputies, and assistants. By an amendment recently made to section 1616 of the Penal Code (Stats. 1917, p. 240), it is provided that the woman designated shall be paid out of the general fund of the county. We are not called upon in the present proceeding to consider whether this amendment has any validity. It follows that the payments made to Mrs. Janssens were without authority of law, and that they may be recovered by the county in this action.

[3] We think, however, that the complaint does not state a cause of action against the sheriff or his surety. Section 4005b of the Political Code, on which this suit is founded,

Where, as in the case of the sheriff of Santa Barbara county, the law allows a fixed salary, which shall be in full compensation for all services rendered by the officer, and provides that all deputies employed shall be paid by the principal out of such salary, a statute authorizing the appointment of a new deputy to be paid out of the county funds works an increase of the principal's compensation. Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092, 16 L. R. A. 161; County of Calaveras v. Poe, 167 Cal. 519, 140 Pac. 23. Such an increase would, it seems clear, be effected by section 1616, if that section had undertaken to put upon the county the burden of paying for the, services of the woman to be designated. We may concede, as is claimed by the respondents, that the Constitution does not prohibit the dim-authorizes the district attorney of the county inution of the duties of any county officer, and the transfer of a part of such duties to some other officer. But nothing of the kind was contemplated by section 1616. The statute does not create an independent office, whose incumbent performs functions separate and distinct from those imposed upon the sheriff. The law had always provided that it was the duty of the sheriff, among other things, to "take charge of and keep the county jail, and the prisoners therein" (Pol. Code, § 4157, subd. 6), and that the sheriff is liable for the escape of prisoners in his charge (Pol. Code, § 4163). We cannot believe that the Legislature intended to affect this duty or this liability by providing—as in substance it did provide-that actual contact between female prisoners and jailers should be through, or in the presence of, a woman. The policy of segregating female prisoners

to bring an action against the person or persons to whom money shall have been paid without authority of law. The payments set forth in the complaint were made to Mrs. Janssens. They were not made to the sheriff. It is alleged that the sheriff approved the claims, and requested the board of supervisors to allow them. But this is a very different thing from saying that he received the money. The opinion in County of Calaveras v. Poe, supra, does contain an intimation that money thus paid to an assistant might be regarded as paid to the principal. The statement was not, however, made positively, and was not the ground upon which the decision was, in fact, based. The recovery in the case cited was held to be authorized by other provisions of law. If there was no liability on the part of the sheriff, it goes without saying that no cause of action was

The judgment in favor of the defendants [ cepted lands within municipalities from its Nat Stewart and the Title Guaranty & Sure- operation if the city so desired, did not affect ty Company is affirmed. The judgment in fa- the validity of the act.

vor of the defendant Janssens is reversed.

9. DRAINS 67
"TAX."

SPECIAL ASSESSMENTS

While a tax levied on all land for flood proWe concur: ANGELLOTTI, C. J.; HEN-tection would be unconstitutional, the word SHAW, J.; MELVIN, J.; VICTOR E. "tax", may include special assessments, and as

SHAW, Judge pro tem.

LOS ANGELES COUNTY FLOOD CONTROL DIST. v. HAMILTON (ANDREWS et al., Interveners). (L. A. 5201.)

(Supreme Court of California. Dec. 31, 1917.) 1. CONSTITUTIONAL LAW 290(3) DUE PROCESS OF LAW-POWERS OF LEGISLATURE -FLOOD DISTRICTS.

-

used in St. 1915, p. 1502, creating Los Angeles county flood control district, must be taken to mean special assessments so that the act is valid.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Tax.] 10. MUNICIPAL CORPORATIONS 434(1)

SPECIAL ASSESSMENTS-EXEMPTION. the Legislature's power to exempt property from In the absence of constitutional restriction, taxation includes power to exempt from special assessments. 11. DRAINS 18 PROCEEDINGS-LEGALIZING ACTS.

DRAINAGE DISTRICT

Due process of law does not require that landowners be accorded hearing on question of If proceedings under St. 1915, p. 1502, creinclusion of their land within the flood protec-ating Los Angeles county flood control district, tion district when the Legislature has deter- were defective by reason of insufficient engimined the benefit. neers' reports and insufficient preliminary steps to hold an election, the defects were removed by St. 1917, p. 239, ratifying and legalizing the bonds and all acts and proceedings leading up to their issuance. 12. DRAINS 18 CREATION.

2. DRAINS 67-SPECIAL ASSESSMENTS-AD VALOREM BASIS.

The Legislature may apply the ad valorem method of assessment on a flood protection project without any judicial inquiry into, or determination of, extent of benefits. 3. DRAINS 67-FLOOD PROTECTION PROJECTS FINDING OF BENEFITS PRESUMPTIONS. Mere passage of St. 1915, p. 1502, creating Los Angeles county flood control district, was an effective finding by the Legislature that the proposed work would answer a public purpose and benefit the land so as to warrant imposition of cost as in the act provided.

An election on the question of issuing bonds for Los Angeles county flood control district, created by St. 1915, p. 1502, not being requir ed by Constitution, the Legislature might have provided for the issuance of the bonds without election, and therefore St. 1917, p. 239, legalizing all acts leading up to execution of bonds, cured any defect in the election.

4. CONSTITUTIONAL LAW 68(1)-LEGISLA- In Bank. Petition for writ of mandate by TIVE FUNCTIONS-IMPROVEMENT DISTRICTS the Los Angeles County Flood Control Dis-POWERS Of Courts. Fixing district to bear expense of local im-trict against John J. Hamilton, as Chairman provement and the mode of distribution of ex- of the Board of Supervisors of Los Angeles penses are, primarily, legislative questions, with County, ex officio the Board of Supervisors which the courts will not ordinarily interfere. of Los Angeles County Flood Control Dis5. CONSTITUTIONAL LAW 48 CONSTITUtrict, and as Chairman of the Board of SuTIONALITY OF ACT-PRESUMPTIONS. In determining power of Legislature to en-pervisors of said Los Angeles County Flood act St. 1915, p. 1502, creating Los Angeles county flood control district, the court must view the act with every presumption favorable to its constitutionality, and can consider only such facts as appear on the face of the statute with those which are matters of judicial cog

SLOSS, J. Los Angeles county flood control district was created by an act of the Legislature, approved June 12, 1915 (Stats. 1915, p. 1502), and known as the "Los AnThe mere fact that boundaries of Los Angeles County Flood Control Act." Steps were geles county flood control district created by St. 1915, p. 1502, largely coincided with boundaries of Los Angeles county, did not establish arbitrary and accidental determination of boundaries.

8. DRAINS ~2(1)—FLOOd Control DISTRICT

-STATUTE-VALIDITY.

Mere fact that St. 1915, p. 1502, creating Los Angeles county flood control district, ex

taken looking to the issuance of bonds under this act, and the present proceeding is one in mandate to compel the chairman of the board of supervisors of Los Angeles county, as chairman of the board of supervisors of said district, to sign one of such bonds. An alternative writ was issued. The return of

After the adoption of the report, the board is required to call without delay a special election, and submit to the qualified electors of the district the proposition of incurring a bonded debt in the amount and for the purposes stated in the report. The manner of calling the election is prescribed. in detail by the act. If a majority of the votes cast are in favor of incurring such bonded indebtedness, bonds of the district "shall be issued and sold as in this act provided." The bonds are to be signed by the chairman of the board of supervisors, and countersigned by the auditor of Los Angeles county. The act provides for the sale of the bonds at not less than par. Any bonds so issued are declared to be "a lien upon the property of the district," and it is provided that such bonds and the interest thereon shall be paid "by revenue derived from an annual tax upon the real property within said district, and all the real property in the district shall be and remain liable to

the respondent was made by demurrer to the | modified to its satisfaction, stating the amount petition. Andrews and others intervened, of the entire estimated cost for which bonds and filed an answer in opposition to the are to be voted. The finding in said resolugranting of the relief sought by the petition. tion as to the sufficiency of the report, and The facts are undisputed, the proceeding be- that the same complies with all of the reing submitted upon questions of law alone. quirements of the act, shall be final and The grounds of opposition to the granting of conclusive against all persons except the the relief sought may fairly be grouped un- state. der two heads. It is contended, in the first place, that the act creating the district is unconstitutional and void, and second, if the validity of the legislation be upheld, that the steps prescribed as prerequisites to the issuance of bonds were not regularly taken. The act creates a flood control district to be called "Los Angeles County Flood Control District," comprising all of the county of Los Angeles lying south of the north line of township 5 north, San Bernardino base, except the islands off the coast included in Los Angeles county. The objects and purposes of the act, as stated in section 2, are "to provide for the control of the flood and storm waters of said district, and to conserve such waters for beneficial and useful purposes by spreading, storing, retaining or causing to percolate into the soil within said district, or to save or conserve in any manner, all or any of such waters, and to protect from damage from such flood or storm waters the harbors, waterways, public highways and property in said district." The be taxed for such payments as hereinafter district is declared a body corporate and provided." By section 10, the board of supolitic, and is given a number of powers pervisors is required to levy a tax each usually conferred upon public corporations. year upon the taxable real property in the One of the powers so granted is "to cause district sufficient to pay the interest on said taxes to be levied and collected for the pur-bonds for that year, and such portion of the pose of paying any obligation of the district principal as is to become due before the in the manner hereinafter provided." By section 3 the board of supervisors of Los Angeles county is designated as ex officio the board of supervisors of the district. The various county officers are made ex officio officers of the flood control district, and are directed to perform without additional compensation the same duties for said district as for the county of Los Angeles. The board of supervisors is given jurisdiction and power, and it is made their duty to employ by resolution "a competent engineer or engineers to investigate carefully the best plan to" carry out the purposes declared in section 2. It is provided that such resolution shall direct such engineer or engineers to make and file a report with the board of supervisors, which shall show a general description of the work to be done, with plans and specifications, a description of the property to be taken or injured, a map showing the proposed work, and an estimate of the cost of such work, of the property to be taken or injured, and of all incidental expenses, stating also the total amount of bonds necessary to be issued to pay for the same. After the filing of this report, the board shall

time for making the next general tax levy, the taxes to be levied and collected at the time and in the same manner as the general taxes levied for county purposes. The board of supervisors is given power, in any year, to levy in like manner a tax upon the taxable real property of the district to carry out any of the objects of the act, such taxes not to exceed 10 cents on each $100 of the assessed valuation of the real property of the district, exclusive of taxes levied to meet principal and interest of bonds. The act then goes on to provide for the doing of work under the act, and declares that the plans and specifications for any work to be done in any municipality must first be approved by the legislative body of such municipality before the commencement of such work, or the letting of any contract therefor. In case such approval is withheld for 30 days, the board of supervisors shall omit the doing of such work within such municipality, "and such omission shall not affect the validity of its proceedings," and the funds which were to be expended in the municipality may be expended elsewhere by the board of supervisors.

not necessary, for present purposes, to set must be taken to import a finding by the forth.

Legislature that the proposed work will answer a public purpose, and that its execution will benefit the land within the district to such an extent as to warrant the imposition upon such land of the cost in the manner provided. The findings thus implied are as fully effective as if declared in express terms in the act itself. San Christina Inv. Co. v. San Francisco, 167 Cal. 762, 769, 141 Pac. 384, 52 L. R. A. (N. S.) 676. The fixing of the district which is to bear the expense of a local improvement, and the mode in which such expense is to be borne and distributed, are, primarily, legislative questions. Hadley v. Dague, 130 Cal. 207, 220, 62 Pac. 500; Glide v. Superior Court, 147 Cal. 21, 25, 81 Pac. 225. Ordinarily the courts will feel themselves bound by the legislative body's determination of these questions. Indeed, there are not a few decisions containing expressions to the effect that the legislative determination that certain land will be benefited, and that the cost of the work should be assessed upon it according to a given plan, is conclusive. But since the imposition of such costs finds its ground of sanction in the benefits conferred upon the lands charged, it may well be that the legislative conclusion should not be upheld where the court can see that it is contrary to any rational view of the facts, and that lands have been included that "plainly could not by any fair or proper view of the facts be benefited." Fallbrook Irr. Dist. v. Bradley, supra; Myles Salt Co. v. Iberia Drainage Dist., 239 U. S. 478, 36 Sup. Ct. 204, 60 L. Ed. 392.

[1] Of the various objections to the validity of this act, the one urged with the greatest vigor is that the statute violates the provisions of the federal and the state Constitutions prohibiting the taking of property without due process of law. Reduced to its final terms, this claim is founded on the assertion that the boundaries of the district include considerable property which will not and cannot receive any benefit from the contemplated improvement. The scheme of the act is one of local improvement. The warrant and justification for charging the cost of such improvement upon designated lands is to be found, in theory at least, in the benefit to be derived by the lands assessed from the contemplated work. Reclamation Dist. v. Birks, 159 Cal. 233, 241, 113 Pac. 170. Where, as in the act before us, the boundaries of the district are determined by the Legislature itself, the constitutional guaranty of due process does not require that the landowners shall be accorded a hearing on the question of the inclusion of their land within the district. "The Legislature has power to fix such a district for itself without any hearing as to benefits, for the purpose of assessing upon the lands within the district the cost of a local, public improvement. The Legislature, when it fixes the district itself, is supposed to have made proper inquiry, and to have finally and conclusively determined the fact of benefits to the land included in the district, and the citizen has no constitutional right to any other or further hearing upon that question." Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112. 174, 17 Sup. Ct. 56, 41 L. Ed. 369; Recl. Dist. v. Phillips, 108 Cal. 306, 314, 39 Pac. 630, 41 Pac. 335; People v. Sac-trict does thus transcend the limits of legramento Drainage Dist., 155 Cal. 373, 386, 103 Pac. 207; Brookes v. City of Oakland, 160 Cal. 423, 117 Pac. 433.

[5] It must, however, be remembered that, in inquiring whether a given act of the Legislature creating a local improvement dis

islative power, we are governed by the rules applicable to any judicial examination of the validity of a statute. Not only must the court view the act in the light of every presumption and intendment favorable to its constitutionality, but it must limit itself to a consideration of such facts as appear upon the face of the enactment, together with such others as are matters of judicial cognizance. Neither allegation nor proof of further facts can be considered. Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, 25 Am. St. Rep. 230; People v. Sacramento Drainage Dist., supra; San Christina Inv. Co. v. San Francisco, supra.

[2] In addition to defining the limits of the district, the Legislature by the act itself prescribed the mode of distributing the burden by assessing the lands in proportion to their value. It is thoroughly settled that the Legislature may apply the ad valorem method of assessment, without any judicial inquiry into, or determination of, the extent of benefits. Recognizing that absolute equality cannot be attained under any system of taxation or assessment, the courts hold that constitutional requirements are satisfied by that approximation to equality which may fairly be [6] We need not enter into a discussion of thought to result from an assessment of the the extent to which the court may take judicost upon the property benefited in proportion cial notice of the topography of the territory to its ascertained value. Burnett v. Mayor, covered by the act. The substance of the etc., of Sac'to, 12 Cal. 76, 84, 73 Am. Dec. 518; claims made by the respondent and the interIn re Madera Irr. Dist., 92 Cal. 296, 28 Pac. veners is that the district contains several 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106: separate and unconnected watersheds, that Thomas v. Pridham, 171 Cal. 98, 104, 153 it comprises a considerable area of mountainPac. 933; Fallbrook Irr. Dist. v. Bradley, ous land, much of which lies above the plane supra. of any flood waters that are to be anticipated,