Opinion
In Bank.
Application for a writ of mandate.
For opinion of the District Court of Appeal, see 14 P.2d 559.
J. E. Woolley, of San Francisco (Vincent J. McGovern, of San Francisco, of counsel), for petitioner.
Ray Bailey, Dist. Atty., and W. A. McGinn, Deputy Dist. Atty., both of Bakersfield, for respondent.
Myrick & Deering and Scott, Thornton & Watt, and John Ralph Wilson, all of San Francisco, amici curiae.
PER CURIAM.
Hearing denied.
SEAWELL, J. (dissenting).
I am in accord with the conclusion of the appellate court, that the entire loss due to the alleged robbery cannot be cast upon the petitioning water storage district. My decision that a hearing should be granted is based on the proposition that, when moneys in the custody of the county treasurer in his office are taken from him by robbery it cannot be said that any particular funds have been stolen, but rather it must be held that the sum total of funds in the custody of the treasurer is reduced pro tanto by the robbery. The total of funds in the legal custody of the county treasurer consists in part of funds which are the property of the county, and in part of the funds of the water storage district, which is petitioner herein, and of irrigation and other districts, if such there be, which under the law deposit moneys with the county treasurer of Kern county. When the sum total of all funds in the custody of the treasurer is reduced by robbery, I am of the view that the loss affects the entire fund in the treasury, and should be borne proportionately by all who have an interest in the fund. The treasury, in which all funds are in the custody of the treasurer by law, sustains the loss, and not any particular unit or special fund, equally entitled with all others, to protection. The error of the appellate court's decision, in my opinion, is that it seems to relieve the petitioning water storage district from bearing its proportionate share of the loss, and to throw the entire loss upon the county and other districts which may have funds on deposit in the county treasury.
It may be that, after charging to the water storage district its proportionate share of the loss alleged to be due to robbery, sufficient funds would still remain to the credit of the district to pay the particular warrant involved in the instant mandamus proceeding. But, if this is the situation, the decision should be placed upon that ground.
The answer sets up the defense of robbery. No finding of fact was made as to that issue. Such evidence as was introduced was purely hearsay and entirely inconclusive to establish such a defense. In fact, the question of robbery or no robbery seems to have been subordinated to the questions of law to which the District Court of Appeal directed its attention.
The foregoing reasons constitute the grounds upon which I disagree with the majority of the court.