Tilden v. Board of Supervisors

By the Court, Wallace, J.: It is provided by the Act of April 25th, 1863, that the Board of Supervisors of Sacramento County “ shall not be sued in any action whatever,” but that they may be proceeded against by certiorari, mandamus, or injunction to prevent or compel their proceedings, “if the same can legally be prevented or compelled.”

Tilden presented a claim to the Board,.and it was disallowed. He then obtained a writ of mandamus from the Court below, commanding the Board to allow a specified . portion of the claim. From this judgment the Board bring this appeal.

In disallowing the claim the Board unquestionably acted in the exercise of judicial functions, and having arrived at a determination upon the matter pending before it, it is not to be turned round to some other judgment, not its own, through the instrumentality of the writ of mandamus. Before such a writ can be properly awarded, it must be made to appear that the Board refuses to perform some designated act which the law specially enjoins upon it as a duty. The complaint here is that it refuses to allow Tilden’s claim. But the answer is, that there is no duty resting on the Board to allow this particular claim, either in whole or in [71]part; that its only duty was to act upon it as a claim, and that that duty is as fully discharged (so far as a writ of mandamus can enforce it) by a rejection as it would have been by an allowance of the claim.

Our attention has been called to the fact that at the time at which the Board rejected the claim it also adopted the following resolution:

11 Resolved, Whereas, doubts exist in the minds of a majority of the Board of Supervisors of Sacramento County whether the claims against said county presented to said Board by M. C. Tilden, City Attorney, for fees of that office, are a legal charge against said county, and are desirous of having a legal decision by some Court of competent jurisdiction and authority to determine the same; and whereas, said Board and said City Attorney are desirous of testing said question in Court, with as little expense and delay as possible; with a view to that end, it is hereby admitted on the part of said county and said Board of Supervisors that the claims filed by said Tilden with the Clerk of said Board on the — day of”April, 1868, marked “A” and “B,” were presented in due form; that the labor therein charged for was performed by said Tilden, while City Attorney of Sacramento City, at the dates therein set forth, and that no part of said fees have been paid by the county or otherwise, and that the above claims have been rejected and disallowed by said Board; and the District Attorney is hereby directed to enter the appearance of this Board in any action or proceeding which said Tilden may commence in any Court, not a Court of a Justice of the Peace, for the purpose of requiring said Board to allow the said claims, and defend the action of this Board therein.”