Rooney v. Snow

VAN DYKE, J.

In April, 1898, the city council of the city of Oakland passed an ordinance, the first section of which reads as follows: “The sum of one thousand dollars is hereby appropriated from the general fund of the city of Oakland for the year 1897-98 to pay the claim and demand of Owen E. Rooney for moneys erroneously collected by the city of Oakland from said Owen F. Rooney and paid by him under protest as liquor license for the saloon and restaurant kept by said Owen F. Rooney at the end of the Oakland pier.” By the second section of the said ordinance the auditor is directed' to draw his warrant in favor of said Rooney for the sum of one thousand

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dollars, and the treasurer of the city is ordered to pay said warrant.

The respondent Snow, as auditor of the city of Oakland, refused to draw his warrant upon the treasurer, as required by said ordinance. Thereupon the plaintiff applied to the superior court of Alameda county for an alternative writ of mandate against said respondent, as such auditor, requiring him to show cause why he did not draw a warrant in favor of the plaintiff, as required by said ordinance. The respondent demurred to plaintiff’s petition, and the lower court sustained the demurrer; plaintiff declining to amend, judgment was entered in favor of the defendant for costs, from which judgment this appeal is taken. The appellant relies upon said ordinance as the foundation of his claim and maintains that the auditor of said city has no discretion in the matter, but merely a ministerial duty to perform in drawing the warrant in accordance with the ordinance.

By section 40 of the charter of the city of Oakland every demand, before it can be paid, must be presented to the auditor to be approved, “who shall satisfy himself whether the money is legally due and remains unpaid, and whether the payment thereof from the treasury of the city is authorized by law, and out of what fund. After such examination he shall approve or reject the claim in whole or in part, and indorse upon such demand his approval or rejection over his signature, together with the date thereof. If it is approved, the fund out of which it is to be paid shall be designated. If the claim is rejected, or any part of it, unless the party presenting it is willing to take in full of the entire demand the sum offered, the auditor shall return it to the council, board, or other body which originally authorized it, then if it is allowed by a majority vote of all the members of the council, or of the members of the board or other body authorizing it, and approved by the mayor, it can be audited in the same manner as if it had not been rejected; provided, the said council, board, or other body had the authority to make the expenditure out of which the claim arose.” (Stats. 1889, p. 531.)