Thornton, J., dissenting. I dissent. The applicant for the writ in this case has never presented his claim to the board of education for their examination and allowance, and consequently he is not in a positon to ask a mandate from a court to command the board of education to draw a draft in his favor for any sum payable out of the school fund of the city and county of San Francisco.
Section 82 of the Consolidation Act provides that no payment can be made from the treasury or out of the public funds of said city and county, unless the same be specifically authorized by this act, nor unless the demand which is paid be duly audited, as in this act provided, and that must appear on the face of it.
[548]Section 83 of the same act provides that “the term ‘audited/ as used in the act with reference to demands upon the treasury, is to be understood their having been presented to and passed upon by every officer and board of officers, and finally allowed by law; and this must appear upon the face of the paper representing the demand, or else it is not audited.”
Section 84 of the same act is as follows:—
“Sec. 84. Every demand upon the treasury, except the salary of the auditor, and including (the) salary of the treasurer, must, before it can be paid, be presented to the auditor of the city and county to be allowed, who shall satisfy himself whether the money is legally due and remains unpaid, and whether the payment thereof from the treasury of the city and county is authorized by law, and out of what fund. If he allow it, he shall indorse upon it the word ‘allowed/ with the name of the fund out of which it is payable, with the date of such allowance, and sign his name thereto; but the allowance or approval of the auditor, or of the board of supervisors, or any other board or officer, of any demand, which upon the face of it appears not to have been expressly made by law payable out of the treasury or fund to be charged therewith, shall afford no warrant to the treasurer or other disbursing officer for paying the same. No demand can be approved, allowed, audited, or paid, unless it specify each several item, date, and value composing it, and refer to the law by title, date, and section authorizing the same.”
Section 85 of the act contains the following provision as to demands payable out of the school fund: “All demands payable out of the school fund must, before they can be allowed by the auditor, or paid, be personally approved by the board of education, or by the president thereof, and superintendent of common schools, acting under the express authorization of said board.”
[549]The school fund is kept by the treasurer of the city and county. (Sec. 95, Consolidation Act, subd. 2.)
By the act of April, 1872 (Stats. 1871-72, p. 846), the board of education has power “to examine and allow, in whole or in part, every demand payable out of the school" fund, or to reject any such demand for good cause, of which the said board shall be the sole judge.”
The seventh section of the act of 1872 is as follows: —
“ Sec. 7. All moneys received or collected on account of public education in the city and county of San Francisco shall be deposited in the city treasury, and be known as the school fund. Payments from said fund shall only be made by the treasurer of the said city and county, upon drafts drawn on him by the board of education, signed by the president and superintendent of common schools, and countersigned by the auditor of said city and county, and all drafts shall be made payable to the person or persons entitled to receive the same.”
Upon a consideration of these provisions of the statutes, valid in their enactment, I cannot perceive what right the applicant has for the mandate he asks.
It does not appear that the demand has ever been presented to the board of education for examination or allowance. The board has had no opportunity to examine it, and allow it or reject it. Non constat that when properly presented, as required by law, i. e., with the specifications of each item, date, and value (Consolidation Act, sec. 34), it will not be allowed. It has never been presented to the auditor for his action, as the law requires.
The appellant is not entitled to a draft for the amount until his demand has been audited and allowed, and this audit and allowance indorsed on the claim. Such is the distinct provision of the statute as cited above.
The petition for the writ fails to aver that any of these things have been done. The averments in each count of the complaint are, that the plaintiff presented to the board the certificate in writing of Edward Casserly, the [550]duly appointed and acting storekeeper of the board, to the effect that he (Casserly) had received from plaintiff the hose contracted for, and demanded a draft. This is not a presentation of the demand which the statute requires, and is insufficient.
The findings show no ground for ordering the writ to issue.
The law does not enjoin on the board of education the duty of drawing a draft in favor of a claimant until his demand has been presented and allowed, as required by law, by the board.
The conclusion reached in the prevailing opinion is not sustained by Wood v. Strother, 76 Cal. 545. That case was entirely different from this, as a perusal of it will demonstrate.
The conclusion here arrived at is sustained by Purdee v. Sinton, 56 Cal. 133; Christie v. Sonoma County, 60 Cal. 164. If the writ was granted in this case, it would control the discretion vested by law in the board of education. This cannot be done. (Clune v. Sullivan, 56 Cal. 249; Cosner v. Colusa County, 58 Cal. 274; Rhodes v. Spencer, 62 Cal. 43.)
It may be as well to add, that if the mandate asked for here issues the treasurer would not be- justified by law in paying it.
The board has had no opportunity here to act, and it is therefore unnecessary to say what would be the remedy of plaintiff if the board, on its presentation, rejected the claim. It will be in order to consider that question when the claim has been presented to the board and been rejected by it.
In my opinion the judgment of the court below is erroneous.
The petition does not state facts sufficient to justify the issuance of the writ, and the demurrer to it should have been sustained. The cause should be remanded, with directions to the court below to deny the writ and dismiss the application.