State ex rel. Potter v. Board of Sup'rs

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment sustaining a demurrer to and dismissing a petition for a writ of mandamus. The petition alleges, in substance, that with the ap-pellee’s approval five assistants to the county superintendent of tick eradication have been appointed, bilt that this is an insufficient number for the work required of them, and prays that the appellee be directed to appoint a sufficient number therefor under the provisions of chapter 167, Laws of 1916. It appears from an exhibit filed with the petition that the number of additional assistants desired by the superintendent is two, and that his request therefor was passed on by the appellee and denied by an order entered in its minutes. Section 1 of chapter 167, Laws of 1916, provides that the county superintendent of tick eradication — “shall have, upon the recommendation of the board of supervisors, the [567] power to select such assistants as may be necessary for the proper and successful conduct of such work of tick eradication, the selection of said assistants to be approved by the board of supervisors, and the salaries to be fixed by the board of supervisors of the county.” The evident meaning of this language is that both the number of assistants to be appointed by the superintendent and the persons appointed by him as such shall be subject to tlie approval of the board of supervisors. The discharge of this- duty requires the exercise of judgment and discretion on the part of the board. In such a case mandamus will not lie to control the judgment or order which the board should enter, but only to compel it to .act, and this the appellee did when it declined to approve the appointment of the additional assistants which the tick eradication superintendent desires. We are not confronted with, and express no opinion on, a case in which the superintendent has not been allowed any assistants at all, but with a case' in which there is simply a difference of opinion between the board and the superintendent as to the number of assistants necessary. The court below committed no error in sustaining the demurrer. Affirmed.