Sharpstein, J., concurring: I concur in the judgment awarding the writ prayed. But the ground upon which I concur obviates the necessity of my expressing any opinion upon the' question so ably discussed by Mr. Justice McKinstry.
On the last hearing a point was brought prominently before the Court which, if presented at any former hearing, escaped my observation, and I infer that it also did that of the other members of the Court, as no allusion was made to it in any of the opinions heretofore filed.
The question to which I now refer is this: What are the functions of the Auditor in respect of a demand which has been approved and allowed by the Board of Supervisors, on an appeal to it from a disallowance by him?
The section of the Consolidation Act which provides for such an appeal reads as follows: \\
“ If any person feel aggrieved by the decision of the Auditor, or other proper officer or officers of said city and county, except the Board of Education, in the rejection of or refusal to approve or allow any demand upon the treasury presented by such person, he may appeal, and have the same passed upon by the Board of Supervisors, whose decision thereon shall he final; and if the said Board shall approve and allow the demand, it shall afterward be presented to the Auditor, and entered in the proper book, in like manner as other demands allowed by him, and an indorsement must be made of its having been so entered before it can be paid.”
What is the obvious import of the language here employed to express the intention of the Legislature ? On behalf of the respondent, it is contended that it means that after the Auditor has refused to audit a demand, and an appeal has [595]been taken from his decision to the Board of Supervisors, and his decision reversed by that body, he may after that, on the subsequent presentation of said demand to him, refuse to enter it in the proper book, “ in like manner as other demands allowed by him,” and that his decision thereon must be held to be final. In other words, the act should be construed as it would be if, instead of the word “ final,” the words “persuasive only” had been used to define the effect of a decision of the Board upon an appeal from the decision of the Auditor. And the entire clause, if reconstructed so as to plainly express what is claimed to be the obvious intention of the Legislature, would read as follows : “ If any person feel aggrevied by the decision of the Auditor, * * * in the rejection of or refusal to approve or allow any demand upon the treasury presented by such person, he may appeal and have the same passed upon by the Board of Supervisors, whose decision thereon shall be persuasive only; and if the said Board shall approve and allow the demand, it shall afterward be presented to the Auditor, and entered, if he sees Jit to enter it, in the proper book, in like manner as other demands allowed by him, and his decision thereon shall he final.” I say final, because the counsel for the respondent claims that no appeal lies from the Auditor’s refusal to enter a demand upon the proper book, etc., after it has been approved and allowed by the Board on appeal from his first refusal to audit and allow it.
Upon that construction, it would have to be held that the law provided for reciprocal appeals in the same case—one from the Auditor to the Board, and one from the Board to the Auditor. But as I view it, there is nothing in the language of the act which would lend the slightest countenance to such a construction of it.
After a demand has been presented to and approved by the Board of Supervisors, it must be presented to the Auditor for his allowance, and he may allow it or not, as he sees fit. If he does not allow it, and an appeal is taken to the Board of Supervisors, and that body reverses his decision, he has after that but one function to perform, and that is to enter the demand “in the proper book, in like manner as other demands allowed by him.”
[596]The proceeding which is here provided for is somewhat, if not quite, analogous to that provided for in eases where appeals are taken from one Court to another. It is usual in such cases to send a remittitur from the appellate to the lower Court, containing the decision of the former, which the Clerk of the Court below is required to attach to the judgment roll, and enter a minute of the judgment of the appellate Court on the docket, against the original entry. That the duty which he is required to perform is purely ministerial, no one can doubt. N either can it be doubted that the appellate Court would compel him to perform it, even if the Court of which he was Clerk should order him not to make the proper entry. Mor would an appellate Court, in a proceeding by mandamus to compel the Clerk to make such an entry as the law requires to be made in such cases, permit its jurisdiction to render the decision which it had rendered to he questioned.
A decision by an appellate Court is final when the law declares it shall be final. Is it conceivable that when the Legislature declared that a decision of the Board of Supervisors should be final, it meant that it should not be final? That an appeal should lie from it to the Auditor, and that his decision should be final? Nothing of the kind is expressed in the act, and as the direct reverse of that is expressed, I may safely add that nothing of the kind is implied.
But it is urged that this reasoning will not apply to a case in which the Board of Supervisors have no power to allow a demand—in which their action is ultra vires. It will probably be conceded that the Board has all the power which the law confers upon it, and that while acting within the scope of the powers so conferred, its action can not be held to be, in any sense, ultra vires. Among the powers conferred upon the Board is that of “providing for lighting the streets.” That undoubtedly implies the power to pay for it, unless it can be obtained for nothing.
But it is said that they can not pay for what they have had because they contracted for more than the law authorized them to contract for. On the other hand, it is contended that there was no law in force at the time the contract was made which forbade its being made for the period specified in it. And it is further contended that if there was, it would [597]not absolve the municipal corporation from the obligation to pay for what it has consumed. Now, these are questions which arose when the demand of the plaintiff was presented to the Board of Supervisors for allowance. And it had to be presented to and approved by that Board before it could be allowed by the Auditor, “ or in any manner be recognized or paid.” (Sec. 85, Consolidation Act.) And unless so presented within one month after it accrued, if in the power of the holder to present it within that time, it would become forever barred by limitation of time. (Id., sec. 90.) Now, if the Board of Supervisors had no jurisdiction to pass upon that demand, it was worse than idle to present it to them, because they had no power to allow or disallow it. But the . question upon which its allowance or disallowance hinged was one which had to be decided before the demand could properly be allowed or disallowed. If the contract was a valid one, the demand was a valid one, and it was the duty of the Board to allow it. And, as before stated, that question had to be decided by the Board. The demand had to be presented to it, and if allowed by it, to be presented to the Auditor. If disallowed by him, the party aggrieved had a right to appeal to the Board, and the decision of the Board on that appeal is by the law made final. If that be so, what is the use of having an Auditor ? asks the respondent’s counsel. If it be not so, what is the use of having a Board of Supervisors ? might be asked with quite as much propriety. If it was the design of the Legislature that the decision of the Auditor should be final, it is impossible to conceive why an appeal from that decision should have been provided for, with the further provision that the decision of the appellate tribunal should be final.
I am unable to find anything in the Consolidation Act which, to my mind, indicates an intention to clothe the Auditor with the supervisory powers which it is claimed in this case that he possesses.
It seems to me that he is placed where he is to check what may be termed the hasty or inconsiderate action of the Board of Supervisors upon demands presented to it. That after a demand has been allowed by it, it must be presented to and examined by him before it can be paid. If there are in his [598]judgment valid objections to its allowance, he must disallow it. But from that decision an appeal lies to the Board, and if after considering the objections of the Auditor it determines that the demand shall be paid, his duty thereafter in respect of the demand is purely ministerial, and such only as the law prescribes..
It is a mistake to suppose that the Board had jurisdiction to decide right and not to decide wrong. If it had jurisdiction to decide the question right, it had jurisdiction to decide it; and whéther right or wrong, its decision was final until reversed or annulled by some tribunal having jurisdiction to reverse or annul it. I am clearly of the opinion that the respondent did not possess that jurisdiction. And it seems to me that this view of the matter is strongly supported by the recent case of the Bank of California v. Shaber, 55 Cal. 322. It appeared in that case that the plaintiff held a judgment against the city and county which the Board of Supervisors had ordered to be paid. After said order was made, but before payment was made, an appeal from the judgment to this Court was duly perfected by the City and Coúnty Attorney. The appeal stayed all proceedings upon the judgment, and the treasurer refused to pay it.
But this Court, upon the application of the plaintiff, issued a writ of mandamus commanding the treasurer to pay it, notwithstanding the pendency of said appeal. The Court, among other things, said: “In this case the determination of the Board not to prosecute an appeal, and the making of the order for the payment of the claim, terminates the functions of the attorney and counselor in regard to the suit audits conduct, and he was relieved of all further responsibility in the matter; he had no authority to review, reverse, or postpone the action of the Board.” If the Auditor has any power to review, reverse, or postpone the action of the Board upon an appeal from his refusal to allow a demand, he must derive it from some source to which my attention has not been directed. It is as much the duty of the City and County Attorney to prevent the recovery of improper judgments against the city and county as it is of the Auditor to prevent the payment of unjust demands against it. But the powers of both of these officers are prescribed and limited by law.
[599]But it is asked, What remedy would the people have if the Board of Supervisors should make an erroneous decision? The same that they would have if the Board and the Auditor should concur in the allowance of a demand that they ought not to have allowed. No one will claim that infallibility could be secured by providing that the decisions of the Board should not become final until concurred in by the Auditor.
A judgment becomes final when the law declares that it shall be final, and, except as otherwise provided in the Constitution, the Legislature has the. power to. make the decision of any court, tribunal, board, or officer final. Whether it be so or not, does not depend upon the infallibility of the tribunal by which it is rendered.
As before stated, I think the action of the Auditor upon a demand which the Board has allowed upon an appeal from his disallowance of it is purely ministerial, and that the only steps which he can take after his decision has been reversed are plainly pointed out in the law by which he must be guided. If that be so, it seems to me that the answer of the respondent is clearly insufficient. In The People ex rel. Bush v. Collins, 7 Johns. 549, a town clerk refused to record a survey made by a board of commissioners, because, as. he alleged, one of them had not taken the oath of office, and filed a certificate thereof with the clerk according to law. In awarding a peremptory writ of mandamus to compel the clerk to record said survey, the Court said: “It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners void. It was his duty to. record the paper; valeat quantum valere potest. It was enough for him that those persons had been duly elected commissioners within the year and were in the actual exercise of the office.”
In another case a ministerial officer refused to perform certain duties devolved upon him by a law which he insisted was unconstitutional. The Court said that it did not lie with a ministerial officer to raise that objection, and that he must perform the duty which the law imposed upon him. (Smyth v. Titcomb, 31 Me. 272.)