Appeal from a judgment for the defendants, and from an order denying the plaintiff’s motion for a new trial. The case, briefly stated, is as follows: The suit was brought against the defendant Stout, who had 'been superintendent of schools of Butte County, and his sureties, to recover the sum of $530, damages and costs. The cause of action alleged is, that the defendant Stout, as school superintendent, •transferred to the unappropriated school funds of the county (it is alleged wrongfully) certain sums standing to the credit of the plaintiff in the county treasury,—to wit, May 11, 1898, $230; and July 26,1898, $300.

The theory of the action is, that the plaintiff was entitled, under section 1621 of the Political Code, to use the unex pended balance remaining from the previous year for the payment of claims against the district, or for the year succeeding, and that the school superintendent had no authority to reapportion such moneys, except in the case provided in the seC7 tion cited (which admittedly does not apply here), or in the case provided in subdivision 1 of section 1543 of the Political Code, which is: “Whenever an excess of money has accumulated to the credit of a schdol district by reason of a large census roll and a small attendance, beyond a reasonable amount necessary to maintain a school for eight months in such district for the year, the superintendent of schools shall place said excess of money to the credit of the unapportioned school funds of the county,” etc. The claim of the appellant is, that, uhder this provision, the superintendent had no authority to reapportion the money.

Whether this be the case or not, it is clear that the action cannot be maintained. The plaintiff had no proprietary right to the money to its credit in the county treasury, and therefore no right to recover it. (Kennedy v. Miller, 97 Cal. 435 .)-Nor could the defendant be sued personally, in tort, for a mistaken performance of an official duty involving the exercise of judgment and discretion. (Ballerino v. Mason,, 83 Cal. 449,450 , and authorities cited.) It will therefore be unnecessary to consider the Sufficiency of the evidence to sustain the finding • of the court that the accumulated balance to the credit of the plaintiff “ arose by reason of a large census and a small early attendance,” or the power of the school superintendent to determine that question, or, under the law, to judge of the necessity or propriety of the reapportionment.

I advise that the judgment and order appealed from be affirmed.

Gray, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

McFarland, J., Temple, J., Henshaw, J.