Opinion
[Syllabus Material] [Syllabus Material] Rehearing 25 Cal. 117 at 121.
Appeal from the District Court, Ninth Judicial District, Trinity County.
The complaint averred that defendant Musser was Treasurer of Trinity County, and that there was then in the County Treasury about seven thousand dollars, raised and set apart by authority of law, for the special purpose of building or purchasing suitable buildings for a County Court-house and jail; that defendant McCammon was elected a Supervisor in November, 1860, and that his term of office expired on or before November 16th, 1863; that A. J. Price was elected his successor at the general election in the fall of 1863, and duly qualified on or before the 9th day of December following, and that the present members of the Board were defendant Quine, Henry Martin, and said Price; that notwithstanding McCammon's term of office had expired and his successor had been elected and qualified, yet he still pretended that he was one of the Supervisors; that on the 19th day of December, 1863, defendants McCammon and Quine, and Henry Martin, met as a Board of Supervisors, and by the votes of McCammon and Quine, (Price voting against it,) made an order for the purchase of a building from defendant Edgcomb for a Court-house, and also directed the Auditor to draw his warrant on the Treasurer for the sum of about three thousand eight hundred dollars in favor of Edgcomb, payable out of the building fund, for the same; that three appraisers had been appointed to view and appraise the building, and had reported that it was unsuitable for the purpose of a Court-house; that the purchase was about to be made, and the warrant about to be issued by the Auditor and paid by the Treasurer. The usual prayer for an order enjoining the purchase, and the issuing and payment of the warrant, was inserted.
The complaint was filed on the 21st day of December, 1863, and on the same day an injunction was granted by the County Judge. The defendants Edgcomb, McCammon, and Quine, answered, and on the 23d day of January, 1864, moved to dissolve the injunction before the District Judge at chambers. The motion was denied.
COUNSEL:
The bill is radically defective in joining a charge against one of the Supervisors for usurpation of office, and a charge againstthe Board that they had agreed to purchase unsuitable county buildings.
George Cadwalader, for Appellant.
E. F. Allen, District Attorney, for Respondent.
The two chief points in this case are: First--John McCammon is not a Supervisor of this county, and by falsely pretending to be, he is trying to get the Building Fund paid over to James Edgcomb for a building that would be utterly worthless to the county for a Court-house, and if the money once passes out of the county's possession, no matter what the final decision may be on the hearing of the case, the cash would be out of reach or hope of recovery.
JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on petition for modification of opinion.
Since the decision of the appeal taken in this action a petition has been presented on the part of the appellant, asking not for a rehearing, nor for any modification of the judgment, but for a modification of the opinion, on the ground that the opinion is to some extent obiter; and on the further ground that the Court has misapprehended the contents of the report made by the committee appointed by the County Judge to pass on the value of the building owned by Edgcomb, and which he proposed to sell to the county.
In so far as the opinion passes upon any question not necessary to the decision of the appeal, it will interpose no obstacle to a re-investigation of such question upon its merits in any case that may hereafter come to this Court in which the point shall be directly presented. In so far as the misapprehension of the contents of the committee's report is concerned, the document, as such, was not in the transcript, and we were therefore justified in assuming that it had no contents, aliunde the contents set out in the proceedings. Any case coming here hereafter showing that the report comprehended topics other than those to which the present record confines it, will be a case, to that extent, different from the present, and of course one to which the opinion in this case cannot be considered as having any just application.
Petition denied.