Where an act is sought to be compelled by mandamus, which rests in the discretion of the tribunal or officer sought to be compelled, the writ cannot issue. (Mowbray v. Madison, 1 Cranch Rep.)
In the absence of other testimony, it must be presumed by this Court, that defendants' refusal to audit and allow appellant's account, was based upon their not being satisfied that the services charged had been performed. Under the discretionary power conferred upon them, it must be presumed the defendants acted as legally they might, nothing appearing to the contrary.
The counsel then examined the cases cited by appellants, and distinguished them from the case at bar, and proceeded to say, that if, in this case, the complaint speaks at all, it says that the Board refused to audit and allow any part of the appellant's account, and the presumption arises that that refusal was based upon the ground that therewas no evidence to satisfy them that the services charged, or any part of them, had ever been rendered. The record assigns no reason, and without this, the Court will presume they acted in good faith, and within the powers of their office; and quoted the opinion of Platt, Justice, in the last case cited above, etc.
The words in the statute, " for each day the Court shall be satisfied they shall have been respectively employed," imply the power of refusal, and enjoins its exercise, unless satisfied as to the correctness and justness of the account before them. If this discretionary power exists but in part, the applicant for a mandamus was bound to show a ground that would take the case out of it; and this he has not done, but has merely set out the refusal of defendants to audit, etc.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
One of the effects of the demurrer is to admit the truth of the facts alleged.
While, therefore, it is conceded that the supervisors have discretionary power to allow the claim, and determine the amount of compensation, they cannot be permitted in the same breath, to admit the right to compensation, and then refuse to grant it.
The demurrer should therefore be overruled, and the respondents required to answer, in order that the District Court may determine whether they had exercised the jurisdiction with which the law invests them, and have heard and determined the claim of the petitioner according to their legal discretion.
Judgment reversed.