This writ is the proper remedy to enforce obedience to acts of Parliament and to the King's charters, and in such cases is demandable " ex debito justitiae." Bacon's Abridgment, the title mandamus, page 118 of edition of 1854. Pursuing this principle, itis the appropriate remedy to compel obedience to the Legislative Acts of a State. Such has been the course of decision in the State of California, and is supported by adjudications in other States of the Union. It becomes necessary to examine the statutes in relation to this subject. No payments can be made out of the Treasury until the same have been duly approved by the Board of Supervisors and audited. Sec. 95 of the original act, session laws of 1856, page 172. Sec. 85 as amended, page 217 of the session laws of 1857, especially requires that all demands of the description of the demand in this case, must first be approved by the Board of Supervisors before it can be audited or paid. In the original bill, fifth subdivision of Sec. 74, page 165, the Supervisors were expressly authorized to provide for lighting the streets, but by a singular provision in Sec. 95, page 172 of the statutes of 1857, and the amendment of the same section, page 218, session laws of 1856, they are not authorized but prohibited to pay anything for this object. It is not necessary to discuss how far the power of the Legislature extended to exempt the corporation from a compliance with its contracts, because by a law passed in 1858, page 46 of the session laws of that year, the defendants were expressly authorized to adjust, audit and allow, and cause to be paid the amounts due the relator for gas furnished since the first day of July 1856. A duty has by this Act devolved upon the Board of Supervisors, which they have failed to discharge. " Words of permission, when tending to promote the public benefit, are always held to be compulsory." Bacon's Abridgment, and the authorities cited, page 439.
In the case of the Commonwealth v. the Mayor, 5th Watts, (Penn. R.) it is said: " The performance of a corporate function is not a duty to be demanded by action but compelled by mandamus." The People ex rel. of Wilson v. the Supervisors of Albany County, 12 John. 414, illustrates the position.
Bright v. the Supervisors of Chenango, 18th John. R. 242, illustrates the same principle.
The case of McCullough v. The Mayor of Brooklyn, 23 Wendell R. 458, is more to our present purpose.
In the case of Hull v. the Supervisors of Oneida, 19th John. R. 259, the Court says: " The superintending control over inferior courts, magistrates, corporations, etc., by mandamus is in subsidium justitiae. The King v. the Archbishop of Canterbury, (15 East, 117); the People v. Steele, 2 Barbour Sup. Court Rep., page 418.
See 2 Pickering Rep. 414. Rex v. Doctor Windham, Cowper, 378. In Davis v. the Commissioners of Bristol, Morton, J., " Mandamus lies to all inferior tribunals, magistrates and officers, and extends to all cases of neglect to perform a legal duty where there is no other adequate remedy. It applies to judicial as well as ministerial acts. If the duty be judicial, the mandate will be to the officers to exercise their official discretion or judgment, without any direction as to the manner in which it shall be done. If ministerial, the mandamus will direct the specific act performed." 21 Pick. R. 259.
In the case of Selkirk v. The Board of Supervisors of the County of Sacramento, 3 Cal. Rep. page 323, a mandamus was granted to compel the Supervisors to act. They refused to exercise the legal discretion confided in them.
The People ex rel. McDougal v. Bell, Comptroller, 3 Cal. 177, illustrates our position.
Tuolumne County v. Stanislaus County, 6 Cal. Rep. 440. In this case the Court held the proper order was to command the Supervisors to audit the account; exactly what we claim in this.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BALDWIN, Judge
In this case, we understand the mandamus merely to direct that the Supervisors shall proceed to audit the claims of the relator in this proceeding. This does not necessarily require of the Board to allow the account; they have a discretion in respect to their action in this regard, and though they are compelled to proceed to act on the subject matter of the claim, yet the mandamus does not control or prescribe the mode, or determine the result of their action.
The judgment is affirmed.