People ex rel. Central Pacific Railroad v. Board of Supervisors, 27 Cal. 655

27 Cal. 655 | Cal. | 1865

Lead Opinion

By the Court, Rhodes, J.

Proceedings were commenced in this Court for a mandamus, to compel the Clerk of the City and County of San Francisco to countersign four hundred of the bonds of said city and county, and to compel the Board of Supervisors of said city and county to perform all the duties required on their part for the complete execution and delivery of the bonds to the Central Pacific Railroad Company, according to the provisions of the Acts of the Legislature of April 22, 1863, and April 4, 1864, and of the ordinance of said city and county, Number Five Hundred and Eighty-Two.

An answer, in form the answer of the Board of Supervisors, signed by the City and County Attorney and the assistant counsel, and verified by Frank MeCoppin, one of the members of the Board of Supervisors, was filed in the case, and subsequent to the filing of this answer, six of the twelve Supervisors comprising the Board filed answers to the petition in their proper persons.

The counsel for the Board of Supervisors, upon the cause being called for hearing, filed their affidavit, stating that the answers of the six Supervisors were filed without the knowledge of said counsel, and that they had no information thereof until about twenty minutes before the meeting of the Court on that day; and they thereupon moved that those answers be stricken from the files of the Court. The counsel for the relator objected to the motion. It appears from the answer of the Board, that the Board, by resolution, requested the City and County Attorney to represent the Board and the members thereof in these proceedings, and authorized a committe of the Board to employ assistant counsel; and the counsel for the relator do not deny that Messrs. Saunders and Felton, the counsel who signed the answer of the Board, were duly authorized to appear for and represent the Board in the pending proceedings.

The answer of the six Supervisors, after the title of the cause, commences substantially in the following form : “For answer to the amended petition of the above named plaintiff, * * * one of the Supervisors of the City and County of San Francisco, and as such one of the defendants herein, for himself says that he is now and at the time of the commencement of this proceeding was one of the Supervisors of the City and County of San Francisco,” etc.; and they do not purport to be the answer of the whole Board or of a majority of the Board, nor do the six Supervisors pretend to answer for the Board in its aggregate capacity. The Board of Supervisors, organized and acting as one body, in its corporate capacity is the defendant, and not the individual Supervisors who collectively make up the Board, “for this is not a proceeding against any individual until an attachment issues.” (Spencer, J., in People v. Champion, 16 John. 60.) The answer of a Supervisor or of a number of Supervisors, in his or their own name or names, whether as Supervisors or otherwise, could with no more propriety be regarded as the answer of the Board, than could the answers of a number of citizens included within the municipality that elected the Board. The Supervisors constitute the Board, and possess the powers, and are capable of discharging the functions conferred by law upon the Board, only when they are assembled as a body, in the manner prescribed by law. Admitting that the members of the Board may severally answer, suppose that all make default except one, and he answering shows that the Board were not required to perform the alleged duty, could the writ issue either to the Board or to the members who made default ? If it could issue, the Board or the members would be required to perform an act, that had been determined in the action, one of the members was not by law required to perform. If it could not issue, it would then appear that the answer of one member, traversing or confessing and avoiding the matters averred in the petition, was a sufficient defense to the whole proceeding, notwithstanding that the other members admitted every allegation in the petition. If one half of the members should make default and the other half should show good cause, still greater absurdities, if possible, would be manifest.

The answers of the six Supervisors, so far as they relate to the matters stated in the petition, amount to no more than would their default, for they do not deny nor confess and avoid any fact alleged in the petition; but it is attempted, by means of the answers, to raise issues between themselves and the Board, or the remaining members of the Board, respecting certain facts alleged in the answer of the Board. It is difficult to see how such issues could, under any rules of practice, be tried in this action, or how anything would result from the finding of the issues in their favor, as they do not demand any affirmative relief against either the Board or any of its members.

It is said in Tapping on Mandamus (p. 340) that the return to the writ should be made either by those to whom such writ is directed, or who are legally competent to execute it. There can be no question that the Board, and not any member or number of members, must execute the writ (if one should be issued) by the performance in its aggregate capacity, of the duty enjoined. The rules of the Civil Practice Act are as strictly applicable to the pleadings in mandamus as to those in any action, and under those rules no one may answer except those who are made, or are by the Court admitted as defendants. The remark found in the treatises on mandamus, that if two separate returns be made by different portions of the same corporation, the Court will take that which appears to be made by the majority, and other statements of similar import, do not mean that separate returns may be made by the several members of one “ portion of the same corporation,” as of one of the two Boards composing the legislative branch of the municipal government, and that the Court may ascertain which return had the majority of the members; but in order to have any standing it must be made as the return of the whole corporation, or at least of a particular portion or branch of it, if the writ is directed to it, and then if two returns are made in that capacity, the Court will ascertain which is the true return; that is to say, the return of the majority. There might not be a majority to any return if made by individual members, for each member might make a separate return differing essentially from that of each of the other members.

The motion must be allowed, and the answers of the six Supervisors stricken from the files.

The relator moves for judgment on the pleadings; and in support of the motion it is insisted among other things that the answer filed by the counsel for the defendant is only the answer of Supervisor McCoppin, who verified it, and that if it is held to be either his answer or that of the Board, it does not state facts sufficient to constitute a defense to the action.

It is apparent upon inspection that it is not the answer of McCoppin, for its form is : “ The Board of Supervisors do come, and for answer to the amended petition and affidavit, upon which the application of the above named plaintiff is made, allege and show,” etc. The fact that it is verified by him has but slight, if any, tendency to show that it is his answer, and is entirely overcome by the fact that all the allegations are made in the name of the Board. If it can be regarded as a pleading in the cause, it must be held to be the answer of the Board of Supervisors.

The relator objects to the answer being considered as the answer of the Board, because it does not appear that the Board, as an aggregate body, resolved upon and made the return; or as we understand the objection, that the Board has not by resolution adopted the return, as prepared by their counsel, nor directed what matters should be set forth in their answer. It is not doubted, that the counsel who signed and filed the answer of the Board, were duly authorized to represent them, and such being the case, they were fully empowered to appear for them in the action, and do all those things that counsel might lawfully do in behalf of a person who was the sole defendant. In this respect they bear the same relation to the Board that they do to the Clerk of the City and County, and their authority is the same in either case, and similar presumptions will be indulged in, that the answer is the answer of the persons or body that it purports to be. No authority is cited, holding that it must be stated in the answer to the petition, or the return to the alternative writ, made by a corporation or a Board forming a constituent part of the corporate authority, that the corporation or Board had resolved upon the return or answer; and no reason suggests itself to our mind why such a statement should not be required in the petition, when a corporation is the relator, if it is necessary in the answer of the . corporation. The general rules of pleading are substantially the same in mandamus as in. other civil actions. (Tap. on Man.; 8 N. Y. 348 ; Commercial Bank v. Canal Commissioners, 10 Wend. 26 ; People v. Ransom, 2 Comst. 490.)

Among the numerous cases found in our reports of actions brought by or against corporations, none is noticed in which it is stated that the corporation had resolved upon the complaint or answer, or had, as a corporate act, directed what either should contain; and in examining many of the cases cited by Tapping on Mandamus, no such statement is found or said to be required in the return; but it would ajtpear from those cases that it was neither usual nor necessary—the presumption being that it was the return of the officer or body it purported to be. In Mayor of Thetford’s Case, 1 Salk. 192, which was mandamus to the Mayor and Common Council, the return was made in the-name of the corporation, but without the common seal, or the hand of the Mayor set to it. After search of precedents, which were found both ways, the Court held the return good, because they were estopped by the record to say it is not their act; and the Court say that the City of London every year makes an attorney, by warrant, without either sealing or signing. In Rex v. Mayor of Abingdon, 2 Salk. 431, which was mandamus to the Mayor, Bailiffs and Burgesses, the Mayor made a return, and brought it in to file it, and it was objected to as the return of the Mayor and a minority; but Mr. Chief Justice Holt said : “ It is not fit that we should examine upon affidavits whether there was the consent of the majority.” (See also Rex v. St. John’s Coll., 4 Mod. 241.)

But it is said that there are, in effect, two returns, or answers, that in the name of the Board, and that composed of the answers of the six Supervisors; and that as the latter is inconsistent with the fofmer, and is made by one half of the members, it must overrule the answer made in the name of the Board—at least that, taking all the answers together, they make such an inconsistent return, that they must be all disregarded. We have already said that the members of the Board are not parties to this action, and their answers as such members must be disregarded. The presumption is that the answer made and filed by the counsel for the Board in their name is the answer of the Board. “ When a corporation aggregate, to which a writ is directed, has regularly resolved upon and made a return, individual dissentients cannot be allowed to dispute its propriety ” (Tap. on Man. 341); but if the dissentients also file a return as the return of the corporation, the Court will ascertain which is the return of the majority; and doubtless without holding to the strict rule in 1 Salk. 192, that the members are estopped to say that the return is not the return of the majority, they may allege that the return is not the return of the majority, or has not been resolved upon by the corporation, and thereupon have the collateral issue determined by the Court. That, however, is not the case before us, but the dissentients merely undertake to controvert certain of the facts alleged in the answer of the Board, in avoidance of the facts stated in the petition.

The question then recurs, is the relator entitled to judgment on the pleadings, regarding the answer verified by McCoppin as the answer of the Board of Supervisors ci The motion of the relator to that effect is equivalent to a demurrer to the answer, on the ground that it does not state facts sufficient to constitute a defense. Section thirty-seven of the Practice Act providing that “All the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this Act” is applicable to proceedings in mandamus.

The principal facts upon which the right of the relator depends, briefly stated, are as follows: The Board of Supervisors had been commanded by the final judgment of this Court to subscribe six hundred thousand dollars to the stock of the Central Pacific Railroad Company, and to issue the bonds of the city and county in payment of such subscription, pursuant to the provisions of the Act of April 22, 1863; that afterward, under the provisions of the Act of April 4, 1864, the Board of Supervisors passed Ordinance Number Five Hundred and Eighty-Two, approved June 21, 1864, the terms of which were accepted by the relator, by which the parties compromised the claims of the railroad company upon the city and county, under the Act of 1863, it being agreed that the Board should, in lieu of making the subscription and delivering the bonds to the amount of six hundred thousand dollars, deliver such bonds only to the amount of four hundred thousand dollars, without making any subscription to the stock, the bonds to be delivered to the relator, upon condition that they should be accepted in full discharge and satisfaction of all obligations, claims, etc., of the company against the city and county; that the company tendered to the city and county a full release and discharge of said obligations, claims, etc., to be delivered on the receipt of said bonds; that the Mayor, Auditor and Treasurer of said city and county, whose duty it was to prepare and sign said bonds, were in certain proceedings in this Court wherein they were the defendants and the company was the relator, ordered by a peremptory writ of mandamus, to execute and deliver without delay, to the company the four hundred bonds, of one thousand dollars each, as in said ordinance provided. It seems not to be doubted, and the decision in the last mentioned case (People v. Coon, Mayor, et al., 26 Cal. 635) settles the point, that the four hundred bonds to be issued under Ordinance Number Five Hundred and Eighty-Two are parcel of the six hundred bonds provided for in the Act of 1863, they differing from the latter only in the date they were to bear.

In examining the answer somewhat in detail the only question will be whether it states facts sufficient to constitute a defense to the action, and many of the objections taken in the argument by the counsel for the relator, which might have been considered if made the grounds of a special demurrer, or of some proper motion to strike oiit, etc., must be disregarded.

The defendants’ denial that they “became or were lawfully or duly or otherwise bound or obliged to subscribe six hundred thousand dollars, or any other sum to the capital stock ” of the company, or to execute or deliver any bonds, is not the denial of any fact alleged in the petition. The judgment in the case of The People ex rel. Central Pacific Railroad Company v. The Board of Supervisors, etc., whereby the defendants were commanded to subscribe to the stock not being denied stands admitted, and the denial that they were bound to obey the judgment, is only a denial of a conclusion or principle of law. (People v. Commissioners of Fort Edward, 11 How. Pr. 89.) If it is permitted to show collaterally that the judgment is void, the points of invalidity must be specified.

The remarks we have just made are applicable to the denial that they were “bound bylaw to execute or deliver” the four hundred bonds to the company, and the accompanying averment that Ordinance Humber Five Hundred and Eighty-Two is “ wholly illegal and void.” The facts from which the Court might draw the inference that the ordinance was void, and not the assumed inference, should have been stated. The further allegation that neither the Board nor the Legislature have the right or power to make a donation to the company of four hundred thousand dollars of the money of the City and County of San Francisco, even assuming that it appeared that such a donation had been attempted, is rather a specification of a ground of demurrer, than an allegation of a fact.

The next averment of the answer is that the election in the City and County of San Francisco, held pursuant to the Act of April 22, 1863—the Act authorizing the subscription to the stock of the company “ was not fairly, or properly or legally conducted, but was affected, influenced and controlled by corruption and bribery ” practised and perpetrated by the company and its agents and employés; and they specify nine instances, in which the alleged agent of the company employed the company’s money, to corruptly influence the electors, to vote in favor of the proposition, to subscribe to the stock of the company. It will be seen on reading the Act of April 22, 1863, (Statutes 1863, p. 380,) that the Board could not be required, and were not permitted to subscribe to the capital stock of the company, unless a majority of those voting upon the proposition voted in favor of the subscription. It was absolutely essential, therefore, in instituting proceedings against the Board to compel the subscription to be made, that the relator should allege, and if it was denied by the Board, to prove on the trial, that a majority of the votes cast were in favor of the proposition. The fact must have been found by the Court or have been admitted by the pleadings—in other words the facts must have been alleged, and must have been true—for it was the fundamental fact in the action, and in its absence the Court could not have rendered the judgment that was pronounced, commanding the Board to make the subscription and issue the bonds. The matter thus became res judicata, and not subject to be again litigated in another action between the same parties. It is unnecessary to determine whether the alleged bribery and corruption could have been shown at the time the vote was canvassed, or in proceedings to contest the election, but if not admissible on either of those occasions, it would have been admissible in the proceedings against the Board to compel them to make the subscription, if they had alleged that the result at the election had been procured by those means. But now, in addition to the reason already given for excluding the alleged acts of bribery and corruption, they are immaterial and irrelevant, as they do not in any manner avoid the compromise, on which the relator proceeds in this action.

The allegations respecting the failure of the Board to procure an inspection of the books of the company, and to procure answers from the company to questions propounded to them, are so clearly immaterial that they require no notice.

They allege that the passage and-approval of Ordinance Number Five Hundred and Eighty-Two were procured by the false and fraudulent representation of the company, that if the proposed compromise were not made the whole subscription of six hundred thousand dollars, with a year’s interest, would be immediately due; but it is not stated that any fact was falsely and fraudulently stateid, from which the inference might be drawn that the whole amount of bonds and interest was then due, and in the absence of an allegation that they were ignorant of the facts, upon the existence or occurrence of which the subscription became due, we must hold that the alleged representation was of a conclusion of law drawn from existing facts known to the defendants. Conceding the point contended for by the defendants, that the six hundred thousand dollars in bonds were payable in instalments, as assessments were called in from the stockholders generally, it yet is not alleged either that the company represented that assessments to the full amount had been levied, or that the Board were ignorant that they had not been so levied.

The defendants allege that Ordinance Number Five Hundred and Eighty-Two was never published and printed, as required by law; and by that which follows in the same paragraph we understand them to mean, not that the ordinance in the words in which it passed was not published, but that the several provisions of the law directly or indirectly referred to in the ordinance were not published with it. We do not understand that such a publication is required, but it was only necessary to publish the ordinance as passed—all persons being charged with notice of a public Act of the Legislature on which an ordinance is founded.

It is next alleged that the company did not accept said compromise after the passage of the ordinance, and did not comply with the conditions expressed in the ordinance. It is not stated wherein they failed to comply, and therefore that portion of the allegation is insufficient. They set out in the answer the resolution of the company accepting the terms of the ordinance, which had then passed to print, and say that they are advised that such resolution is not an acceptance of the terms of the compromise proposed in the ordinance. The objection amounts in substance to a demurrer to the resolulution that it is not sufficient in law to amount to an assent on the part of the company to the terms of the compromise contained in the ordinance. It is not requisite that the assent to or acceptance of the terms of the compromise should have been made by the company after the ordinance had been approved by the Mayor. The company might by some proper corporate action have proposed the terms of the compromise, and the Board might thereupon have passed an ordinance, as they have done, and such acts would have constituted an assent by each party to the terms. The question as to how the contract must be proven is quite different from that which relates to the time of assenting to the terms proposed. It may be remarked that the commencing of this action, as well as the previous action against the Mayor, Auditor and Treasurer are very indicative of an acceptance by the company, even if it could be held that the acceptance of the terms by the company should have been subsequent to the approval of the ordinance.

The defendants say that the alleged contract, in order to be binding, must have been made in writing, and signed by the party to be charged. It requires no citation of authority to prove that a municipal corporation may contract by ordinance directly, and that a contract made in that manner as fully satisfies the Statute of Frauds as one made by the agents of the corporation who have been authorized to execute the contract. But they insist that the ordinance is not a contract; that it is but a resolution to do a certain thing—that is, to tender to the company certain bonds; that the company resolved to receive bonds if all of them were tendered; and that when the bonds have been tendered by the city and received by the company, and the company have executed to the city a release, as provided for, then the parties will have made an executed contract; but as yet there is no contract between the parties, the ordinance of the city and the resolution of the company amounting to nothing more than declarations of intention to enter into an executed contract. This certainly was not the view of the Court in The People v. Coon et al., nor do we think the position tenable. True, the company say, after accepting the proposal contained in the ordinance, that such acceptance shall be effectual only when the whole of the bonds shall have been delivered to them; but, taking the whole transactions of the parties together, it is manifest that the parties entered into a contract of compromise, but that the company would not yield their rights, or discharge their claims, under the Act of 1863, until the city had complied with the terms of the compromise contract. The parties did not contemplate a further contract, but the company, in assenting to the contract, insisted on a performance of its terms by the'city, before the company would release the city from the obligations cast on her by the Act of 1863.

The defendants further say that the company have not, by any corporate act, consented to be bound by the provisions of the Act of 1863, nor agreed to receive the bonds mentioned in the Act. Such consent of the company was not required by the Act of 1864 to be the basis of the compromise, but it was only requisite that this Court should have commanded the Board to execute and deliver the bonds. The commencing of the proceedings by the company against the Board was sufficient evidence, in that cause, of the acceptance by the company of all the terms of the Act, and the judgment having been rendered compelling the Board to make the subscription and issue the bonds, the inquiry now whether the company had in fact agreed to receive the bonds which they, in that proceeding, demanded should be issued to them, is immaterial.

The denial in general terms that they became bound to execute and deliver the bonds to the amount of six hundred thousand dollars, or that they have ever been compelled by the judgment of this Court to execute or deliver the bonds, forms no answer to the allegation in the petition that a judgment of this Court was rendered by which they were commanded, by the peremptory mandate of the Court to execute and deliver the bonds, as no fact is alleged tending to invalidate the judgment. We have sufficiently indicated our opinion that a denial of this character is not a denial of a fact, but of a conclusion of law, and would be more properly classed among the grounds of demurrer than the allegations of the answer.

The question arising upon the facts alleged by the defendants that the company’s road does not have a terminus at San Francisco, nor at any point nearer than the City of Sacramento, that the work is one of general interest to the whole State, but not of local interest to San Francisco, and that the city has subscribed to the stock of the San Francisco and San José Railroad, which has a terminus at San Francisco, etc., have been discussed by counsel with great ability, but the great length of the opinion will preclude us from considering them in detail. They are resolvable into the question whether the Legislature can impose upon a municipal corpora- ' tion the burden of building or aiding in building a work which is in no sense a work of local interest to the corporation, but which is of general interest to the people of the State. The counsel for the defendants deny the power to the Legislature, and say that the facts alleged by the Board show that the railroad is not of local interest to the city. By the provisions of the Act of 1863, the city was required to become a subscriber, to a certain amount, to the capital stock of the railroad company, in the event that, at the election provided for in the Act, a majority of the electors of the city, voting on the proposition to subscribe, should cast their votes in favor of the proposition. The majority of the votes having been cast in favor of the proposition to subscribe, it became the duty of the Board of Supervisors to make a subscription to the amount of six hundred thousand dollars, whereupon the city would become a stockholder in the corporation, with all the rights of other stockholders, and subject to all the liabilities of other stockholders, except certain ones, from which she was exempted by the provisions of the Act, and having the right to pay her subscriptions in her bonds instead of money. Upon the subscription being made, and the bonds, or an instalment of them equal to the assessments upon other stockholders, being delivered to the company it could not be said that the city had made a donation to the company, or had been charged with the expenses of a work which was being constructed for the benefit of the public, in any other sense than the same could be said of any stockholder in the company, but she would be a stockholder in a work which was being prosecuted for the benefit of all the stockholders in the company. True, the work might not result in profit, but that is a risk incident to all enterprises of the kind. It became the duty of the city to subscribe to the stock, qnd to deliver her bonds to the company, and she was commanded so to do by the Court; and the company having accepted the terms of the proposed subscription, a claim accrued to the company against the city, that she should make the subscription and deliver the bonds, and thereby assume such liabilities as a stockholder, as were required of or cast upon her by law. But the city not wishing to become a stockholder and assume the liabilities incident to that relation, enters into a compromise with the company, under the authority of the Act of 1864, by which it is agreed that the city shall not subscribe nor deliver the stipulated amount of bonds, nor incur the liabilities of a stockholder, and that in satisfaction of the claim of the company against her, she shall deliver to the company a certain less amount of her bonds. The bonds are the price she pays in extinguishment of the company’s claim against her ; and the transaction cannot be regarded as a donation in any other sense than as any compromise may be, nor as a burden imposed on her to aid in the construction of a public work. The facts, therefore, that the work is not one of local interest to the city, and that she has already subscribed to a railroad that is of local interest to her, are immaterial and constitute no defense to the action.

The remaining allegations of the answer have been disposed of in considering other points in the case, but it may be added that in our view it makes no difference as to the validity of the compromise, whether the bonds were payable in instalments or in gross, nor whether a legal assessment had been laid on the capital stock of the company, for irrespective of the time when the bonds under the Act of 1863 might become due, the company held a claim against the city, which was a proper subject of, and formed a good consideration for, a compromise.

The answer of the Clerk of the City and County remains to be considered. It is provided in section five of the Act of 1863, authorizing the subscription of the city to the stock of the company, that upon the bonds being signed by the Pacific Railroad Loan Commissioners, they “shall be presented by the President of the Board of Supervisors to the Clerk of said city and county, who shall countersign the same as such Clerk, in the presence of a quorum of such Board, at a meeting thereof,” etc.; and it is provided by Ordinance Number Five Hundred and Eighty-Two that the bonds thereby required to be issued should be executed in all respects, except as to date, as required by the Act of 1863. The relator alleges in his petition that when the bonds had been signed by the Pacific Kail road. Commissioners they were, by the President of the Board, at a meeting of the Board, in the presence of a quorum thereof, on the 7th day of September, 1864, presented to the Clerk for the purpose of being countersigned by him, in the presence of a quorum of the Board, but that he did not countersign the same; and that on the 27th day of September the relator notified him that there would be a meeting of the Board on the evening of that day, and requested him to attend and complete the countersigning of the bonds, but that the Clerk did not present himself and countersign or offer to countersign any of the bonds. The relator shows that at the meeting on the 27th of September the Clerk was not requested by the Board to countersign the bonds, and had no opportunity so to do ; but, on the contrary, that the Board refused to adopt a resolution requesting the Clerk to countersign the bonds, and, by resolution, directed him to deposit them with the County Treasurer, subject to the order of the Board, which was immediately done.

The Clerk denies that on the 7th of September, or at any other time or meeting of the Board, he had an opportunity to countersign the bonds, or that he was ever authorized to countersign them; and he denies that he has authority so to do without the request of the Board. The bonds, from the first step in their preparation up to their delivery to the company, are under the control of the Board, and everything relating to their execution is done under the direction of the Board. The Clerk of the City and County, in proceeding to countersign them, is as completely subject to their orders, as the Clerk of the Board is, in entering in their journal the fact of countersigning, and the number, date and amount of the bonds. It will not be contended that the Clerk could have proceeded to countersign the bonds after the Board directed him to deposit them with the Treasurer, and it is equally clear that he had no authority to proceed, unless the Board directed him to do so, or afforded him an opportunity to proceed with the countersigning in their presence. His denial raises a material issue of fact, for if his answer is true in that respect, and the motion admits it to be true, he is not in default in the performance of the duties imposed upon him by the Act, and continued by the ordinance.

Our conclusion is that the answer of the Board does not state facts sufficient to constitute a defense; and that the answer of the Clerk sets up a valid defense to the action.

The point presented by the defendants that as the relator is not entitled to all the relief he claims, the peremptory writ must be denied, may be passed upon now, though strictly speaking, the issues of fact raised by the answer of the Clerk should be first disposed of upon the evidence that may be introduced by the parties, but the action, so far as the Clerk is concerned, cannot be disposed of under this motion, on the ground of a misjoinder of parties defendant or of causes of action, as those objections should have been taken by demurrer, for if they exist they are apparent upon the face of the petition. The defendant cites two cases: The People v. The Board, etc., of Dutchess, 1 Hill, 50, and The People v. The Board, etc., 10 Abbot’s Pr. 233, to sustain the proposition “ that if the relator is not entitled to what he demands in the alternative writ, his motion for a peremptory writ should be denied, though it appear that he is entitled to a portion of the relief.” The doctrine of those cases is that the peremptory writ should follow the alternative writ, and that if the alternative writ demands too much—something more than the relator is entitled to—the judgment must be for the defendant; for there cannot be a judgment for the relator for a part of the relief demanded in the writ and for the defendant for the other part. To the same effect also is Tappan on Mandamus, 402, 403. Without commenting upon the distinctions that might be found between such a case, when the question is: Shall the alternative writ be made peremptory ? and a case in which the proceeding is by petition and motion for a peremptory writ, when the Court would doubtless have the right to frame the writ according to the exigencies of the case; we think the point may be solved on other principles. A proceeding to procure the issuing of a writ of mandamus is a civil action. In Kendall v. United States, 12 Peters, 615, the Court say: “It is an action or suit brought in a Court of justice, asserting a right, and is prosecuted according to the forms of judicial proceedings.” (See People v. Ransom, 2 Comst. 490; Commercial Bank v. Canal Commissioners, 10 Wend. 26 ; Tyler v. Houghton, 25 Cal. 26.) The final determination of the Court in the matter is a judgment, and if rendered in any Court but the Supreme Court an appeal lies from the judgment. The parties appear, and by their pleadings form issues, and if of fact they may be tried by a jury, and new trials may be had. The relator may in the same action recover the damages he may have sustained, and execution may issue for the damages and costs. In People v. Croton Aqueduct Board, 5 Abbott’s Pr. 372, it is held that the rules of the code of New York do not apply to mandamus, because Sec. 471 expressly excludes from their operation that class of cases. There is no such reservation in our Practice Act, and in our opinion the general rules of that Act are applicable to mandamus, in the same manner as to an action for an injunction or of quo warranto ; and whatever may be the rule when the relator, after having procured the alternative writ, moves for the peremptory writ, we have no doubt that, when the relator proceeds by petition and notice for the peremptory writ, without procuring an alternative writ, the Court, under the enlarged discretion conferred by Sec. 147, may grant any relief consistent with the case made by the petition, and embraced within the issues, although it may be only a part of that demanded in the prayer of the petition.

We have omitted to comment on many of the cases cited by the respective counsel, for the obvious reason that the attempt to do so, in a case brought before this Court, as a Court of original jurisdiction, in which all the numerous points are presented that suggest themselves to the minds of able and ingenious counsel, as is usual at nisiprius trials, would involve very great labor, without any corresponding benefit.

The relator is entitled to judgment for a peremptory mandamus on the pleadings against the Board of Supervisors, but not against the Clerk of the City and County, and as to him the proceeding must.be dismissed.

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Concurrence Opinion

Sawyer, J., and Siiafter, J., concurring specially.

We are not prepared to say that the individual answers of the six Supervisors, alleging a willingness to perform the duties sought to be enforced, ought to be struck out. But disregarding them, and conceding the answer verified by McCoppin to be the answer of the Board, we are satisfied that said answer does not “ raise a question as to a matter of fact essential to the determination of the motionand that complainants are entitled to a peremptory mandamus against the Board of Supervisors, as prayed for in the petition.

Loewy, the County Clerk, substantially denies that he had an opportunity to countersign the bonds, and the inference from his answer is that he is ready to countersign when a proper opportunity is given. We think his answer raises a material issue as to himj but we do not understand that the relators propose to put in any evidence on that issue; and taking the answer as true, Loewy is not in default. The proceeding must, therefore, be dismissed as to Loewy, and a peremptory writ of mandamus issued against the Board of Supervisors.