Marin County v. Dufficy

Decision Date20 August 1956
Citation300 P.2d 721,144 Cal.App.2d 30
CourtCalifornia Court of Appeals Court of Appeals
PartiesCOUNTY OF MARIN, a political subdivision of the State of California, Plaintiff and Appellant, v. Rafael G. DUFFICY, Jr. and Helen S. Dufficy, Defendants and Respondents. Civ. 16795.

W. O. Weissich, Dist. Atty., Leland H. Jordan, Chief Civil Deputy County of Marin, San Rafael, for appellant.

Haley, Thomas & Buresh, John G. Buresh, San Rafael, for respondents.

AGEE, Justice pro tem.

This is an appeal from a judgment for defendants entered upon the sustaining of their general demurrer to the complaint without leave to amend. The action is brought by the County of Marin, appellant herein, under the provisions of section 26525 of the Government Code, for the recovery of money alleged to have been paid illegally by said county to defendants, respondents herein.

The complaint alleges that respondent Rafael G. Dufficy, Jr., is the County Physician of Marin County; that he and respondent Helen S. Dufficy are husband and wife; that they own the 'San Rafael Medical Building,' located in the City of San Rafael, in said County; that the County and respondents executed a written lease of four rooms and a lavatory in said building, at a rental of $120 per month, for the purpose of housing the offices of the County Physician of Marin County; that commencing March 1, 1952, Dr. Dufficy occupied such leased quarters as County Physician and the County paid out $3,960 in rentals therefor. The judgment prayed for is this $3,960 plus the 20 per cent penalty provided for by said section 26525.

There is no contention that the transaction is not fair in all respects. The action is based upon two theories: (1) The lease is void under the provisions of sections 1090 and 1092 of the Government Code and (2) also void in that it violates the public policy that any contract is invalid which is entered into by a public body with one of its own officers or employees, when that officer or employee has a personal interest in the contract and holds a position of public trust which would enable him to further that personal interest.

Section 1090 of the Government Code provides: 'Members of the Legislature, state, county, judicial district, and city officers shall not be interested in any contract made by them in their official capacity or by any body or board of which they are members.' Section 1092 of the Government Code provides that such a contract may be avoided by any party except the officer interested therein.

The main question is whether Dr. Dufficy, as county physician, is a county officer within the purview of section 1090. Article XI, section 5, of the Constitution of the State of California provides in part: 'The Legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require, and shall prescribe their duties and fix their terms of office.' (Emphasis added.) Section 24000 of the Government Code enumerates who are county officers and a county physician is not included therein unless it can be said that he comes within the last subsection, '(t)', which provides for 'Such other officers as are provided by law.' To each of the specifically designated positions, the Legislature has prescribed the duties and fixed the terms of the respective officers. There is no contention that the Legislature has ever prescribed the duties or fixed the term of a so-called county physician. This failure to do so indicates an intention not to create the position of 'county physician' as a county office. People ex rel. Attorney General v. Wheeler, 136 Cal. 652, 655, 69 P. 435.

Appellant admits that 'section 203 of the Welfare and Institutions Code is the only statutory provision for the appointment of a 'County Physician." This section provides in part: 'The board of supervisors in each county may establish and maintain a county hospital, prescribe rules for the government and management thereof, appoint a county physician and other necessary officers and employees thereof, who shall hold office during the pleasure of the board * * *.' (Emphasis added.) The word 'thereof' refers in each instance to the county hospital. The term, 'county physician,' as used in this section means the county physician of the county hospital. He does not come into existence until the county in question establishes a county hospital. This is also clear from a consideration of the clause, 'appoint a county physician and other necessary officers and employees thereof.' (Emphasis added.) To say, 'employees thereof,' obviously means employees of the county hospital and not of the county physician. Likewise, to say 'a county physician and other necessary officers and employees', (emphasis added) necessarily classifies such county physician as an officer and employee of the county hospital and not as a public officer in the legal sense.

Section 203 of the Welfare and Institutions Code does not become operative until, in accordance with its provision, the county establishes a county hospital. A court may take judicial notice of matters of common knowledge and the Superior Court in Marin County can take judicial notice that said county does not have a county hospital. (10 Cal.Jur. p. 691, et seq.) An appellate court may do the same. (10 Cal.Jur. p. 699.) Until Marin County establishes a county hospital, section 203 of the Welfare and Institutions Code does not become operative or its provisions applicable.

This does not mean that Dr. Dufficy's employment as county physician by the county is not valid. In Valle v. Shaffer, 1 Cal.App. 183, 81 P. 1028, it was held that San Diego County's employment of a physician as health officer was valid by necessary implication, under the provisions of Section 11, Article XI, of the California Constitution, which provides: 'Any county, * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' (Emphasis added.) In other words, Marin County has the implied power under the Constitution to employ Dr. Dufficy as its physician and did not have to await the establishment of a county hospital in order to do so. The fact that he was designated by the board of supervisors as 'county physician' does not mean that he was employed under the authorization of said section 203.

Even if he was or could have been employed under section 203 as 'county physician,' he would still not be a county officer.

People ex rel. Atty. General v. Wheeler, 136 Cal. 652, 69 P. 435, and Cleland v. Superior Court, 52 Cal.App.2d 530, 126 P.2d 622, both hold that a County Physician is not a county officer. The Wheeler case was an action, in the nature of quo warranto, to oust Wheeler from the office described in the complaint as that of 'county physician' on the ground that he was an alien, and therefore, under the provisions of section 841 of the Political Code (now Gov.Code, 1020), disqualified to hold office. Wheeler's demurrer was sustained and judgment entered in his favor on the ground that he was not a public officer. The act (Stats. 1897, p. 458) under which he was appointed is substantially the same as the present section 201 of the Welfare and Institutions Code, neither of which mention the position of 'county physician.' However, in holding that Wheeler was not a public officer, the following statement of the Supreme Court, 136 Cal. at page 655, 69 P. at page 436, is of help in the instant case: 'For, with relation to county offices, it is the constitutional duty of the legislature, not only to provide for the election of the officers, but also to fix their terms of office, to prescribe their duties, and to regulate their salaries or compensation, and this duty could not be delegated to the board of supervisors or others.' (Emphasis ours.) (By amendment to the California Constitution in 1933, the necessity of fixing the compensation by the Legislature, except as to certain officers not involved herein, was abolished.)

In the Cleland case, supra, Cleland was appointed superintendent of the Mendocino County Farm and Hospital. He was indicted on charges of being interested in certain contracts as a county officer in violation of section 71 of the Penal Code (now Gov.Code, 1097). He sought and was granted a writ of prohibition by the District Court of Appeal restraining the Superior Court from proceeding to try him. The Court said that the Wheeler case, supra, 'appears to be decisive of the very issue which is determinative of this proceeding.' 52 Cal.App.2d at page 535, 126 P.2d at page 625. The decision pointed out that section 203 of the Welfare and Institutions Code could not apply because no such office as 'superintendent' is mentioned or authorized by said section. Then, the Court continues, 52 Cal.App.2d at page 537, 126 P.2d at page 626, 'Moreover, neither the Legislature nor the board fixed the term of office as required by the Constitution. * * * His duties were not prescribed by the Legislature. These...

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4 cases
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    • California Court of Appeals Court of Appeals
    • March 4, 1963
    ...v. Desmond, 188 Cal. 783, 790, 207 P. 896; Clark v. City of Pasadena, 102 Cal.App.2d 198, 200, 227 P.2d 306; County of Marin v. Dufficy, 144 Cal.App.2d 30, 34, 300 P.2d 71; County of L. A. v. State Dept. of Pub. Health, 158 Cal.App.2d 425, 431, 322 P.2d 968.) Pursuant to said charter the ap......
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    • California Court of Appeals Court of Appeals
    • May 17, 1968
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