Draper v. Noteware

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring. [278] This was a proceeding by mandamus in the Court below, to compel the defendant as county auditor, to draw his warrant on the treasurer of El Dorado county in favor of the plaintiff for certain amounts, audited and allowed to him by the supervisors of said county. Several errors are assigned by the appellant, only one of which it will be necessary to notice. The writ of mandamus can only be issued to some inferior Court, board, or officer, to compel the performance of an act or duty clearly enjoined by law, and this must be in a case where the party has no other plain, speedy, and adequate remedy. It never lies to control the discretion of an officer, or to direct in what manner he shall act, but simply commands the performance of a duty. It becomes necessary, therefore, to inquire whether it is the duty of the county auditor to draw his warrants on the treasurer for the amount of claims which have been audited, or ordered paid, by the board of supervisors. To determine this, it will be necessary to go back to the first statutes which were passed on this subject. By the laws of 1850, the whole power of county government was placed in the Courts of Sessions of each county; they performed the duties which have since been devolved on the supervisors. The twenty-fifth section of an act, passed April 4th, 1850, concerning county recorders and auditors, provided, that “ all accounts, debts, and demands, justly chargeable against any county, and which are not directed by law to be settled and allowed by some other-person or tribunal, shall be examined and settled by the auditor of such county; and for all such just accounts, debts, and demands settled and allowed by any other person or tribunal authorized by law so to do, and for all demands against such county, the amount of which is fixed by law, the county auditors shall issue orders on the treasury of such county, payable to the several persons entitled thereto." By the provisions of this section, it was made the duty of the auditor to draw his warrant on the treasurer, in all cases where demands had been audited and allowed. This act was afterwards repealed by the law concerning county .recorders, passed March 26th, 1851, the thirtieth section of which is as follows: “All'accounts, debts, and demands, justly chargable against any county, and which are not directed by law to be settled and allowed by some other person or tribunal, shall be examined and settled by the auditor of such county; and for all such just demands against such county, the amount of which is fixed by law, the county auditor shall issue orders on the treasurer of such county, payable to the several persons entitled thereto.” It will be observed at once, that there is an important difference between the two sections quoted. The words, “ settled by any other person or tribunal authorized so to do,” are omitted in the [279] latter act, thus limiting the power of the auditor to draw his warrants to cases where the claim is audited by himself. This is undoubtedly a casus omissus in the law, which subsequent Legislatures have overlooked, supposing,, doubtless, that the law required this duty to be performed by the auditor. We have carefully examined all the subsequent statutes, and do not find that any provision is made for the auditor’s drawing his warrants on the treasurer where the account has been allowed by the supervisors.. This is a defect in the law that should be amended by the Legislature,, and which we would not be warranted in supplying on the pretext of public convenience. Judgment reversed.