Hilton v. Curry

HARRISON, J. The plaintiff was summoned to attend as a trial juror before the superior court of San Francisco, Department No. 3 thereof, and in obedience thereto appeared and attended as such trial juror upon twenty days in the months of March and April, 1897, exclusive of days upon which he actually served as a juror in the trial of causes therein. During all this time this department of the superior court tried only civil cases. Thereafter he demanded from the defendant,who was the county clerk and ex officio clerk of said superior court, a certificate stating that he had so attended and was entitled to he paid therefor the sum of forty dollars, computed at the rate of two dollars per day for each day’s attendance. The defendant refused to give him this certificate, and he thereupon applied to the superior court for a writ of mandate commanding the defendant as such clerk to make and issue to him the said certificate. A demurrer to his petition was overruled by the court, and judgment was entered in his favor in accordance with his petition, from which the present appeal has been taken.

[86]The writ of mandate is issued “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Code Civ. Proc., sec. 1085.) It is not alleged in the petition or contended by the respondent that there is any statute directing the county clerk to issue the certificate which was demanded of him—the allegation in the petition being, “that it is necessary for the collection of said sum from the city and county that the defendant make and issue” the said certificate; and he states in his brief that this necessity arises out of the fact that the board of supervisors refuses to take action upon any claim for juror’s fees unless accompanied by such certificate. We are not cited to any provision of law making the presentation of such certificate a condition precedent to any action by the board of supervisors, and, in the absence of such provision, this requirement by the board would not defeat any right of recovery which the respondent might otherwise have. If the certificate is not authorized by statute, it could have no legal effect, and would be but the mere declaration of a fact which is capable of being shown by any other competent evidence. The cases of Jacobs v. Elliott, 104 Cal. 318, and Mason v. Culbert, 108 Cal. 247, cited by respondent, arose under section 28 of the act of 1870, as amended in 1872 (Stats. 1871-72, p. 188), which expressly directed the clerk to issue such a certificate. This statute, however, both by section 52 thereof, and also by another act passed at the same session (Stats. 1870, p. 680), expressly excepted and exempted the city and county of San Francisco from its operation, and the above cases are consequently inapplicable here.