6 Cal. 254 | Cal. | 1856
Mr. Justice Terry concurred.
The Court below non-suited the plaintiffs on the ground that they had mistaken their remedy, and should have proceeded by mandamus, instead of bringing an action of assumpsit against the county.
In arriving at this conclusion, the Court has resorted to a species of argumentation doubtless conclusive to itself, but perfectly unintelligible to us, as it defies all rules of logical analysis.
Counties are quasi corporations, and the power to sue and to be sued is given in general terms by “ an Act prescribing the manner of commencing and maintaining suits by or against counties, passed May 11, 1854."
By the 24th section of an Act creating a board of supervisors for the various counties of the State, it is provided that, “ no person shall sue a county in any case, or for any demand, unless he or she shall first
It would be impossible to employ language more apt in giving the remedy, and providing how the right shall be enforced, than that used in the section of the statute referred to. The Court below relies on the decision of the Superior Court of New York, in the case of Brady v. The Supervisors of New York, 2 Sandford’s Reports. There is no analogy between the two eases; first, the laws of New York and those of California are different on this subject; and second, because the Court in that case considered the supervisors as a judicial body, from whose decision upon the auditing of an account no appeal lies; while it has been repeatedly held by us that supervisors are neither judicial nor quasi judicial officers.
The right to sue is not limited to cases of torts, malfeasance, etc., but is given in every case of account; even if the statute was less comprehensive, it may well be doubted whether a mandamus would lie in such a case. The writ of mandamus lies to compel any inferior board or tribunal to proceed and act, where such action is a legal duty, but not to direct such action.
The compensation claimed not having been fixed by statute, (which would be a positive legal obligation upon the supervisors to fulfill by auditing the same,) the only office of a mandamus in such a case would be to compel the supervisors to pass upon the account, which they have already done by rejecting it, on the ground of its illegality, and thereby a cause of .action has accrued to the plaintiffs which they may legally prosecute.
The remainder of the opinion of the Court is entirely gratuitous, and calculated to prejudice the case of the plaintiffs.
Judgment reversed with costs.