69 P. 88 | Cal. | 1902
The proceeding is an application for a writ of mandamus, directing the defendant to draw and deliver to plaintiff a warrant upon the library fund of the city of Alameda, directing the treasurer to pay the claim of plaintiff.
The appeal is taken from the judgment ordering the writ to issue in favor of the plaintiff as prayed. The plaintiff sues for himself and as assignee of six others, and the claims are balances of accounts for books and other supplies furnished to the defendant, being a public board having control of the free public library of the city of Alameda, constituted and transacting business as such, under the act of the legislature approved April 26, 1880. The respective accounts due the plaintiff and his several assignors had been duly and regularly allowed and approved by defendant, and warrants drawn in payment thereof upon the city treasurer. These warrants were then left with one J.W. Harbourne, librarian of the defendant board, to be by him delivered to the plaintiff and other parties in whose favor they were drawn. The warrants, however, were never delivered to the plaintiff or the other parties entitled thereto, or any one authorized by them to receive them. It appears, however, that they were presented by Harbourne to the treasurer and by him paid, and marked paid, and that the said librarian soon thereafter absconded.
The appellant contends that the plaintiff had a plain, speedy, and adequate remedy in the ordinary course of law, and, therefore, is not entitled to proceed by mandamus. The ordinary and proper course to be pursued, according to the act under which the defendant was constituted, is the presentation of the claim to the defendant board, and when audited and allowed by said board, to have a warrant drawn on the city treasurer for the payment thereof. This seems to have been the custom pursued, and the claims in question had been allowed and approved by said board, but, as stated, the warrants after being drawn were intrusted to the librarian of said board, and never came to the hands of the parties *405
entitled thereto. It is practically as though the warrants had been drawn and destroyed by the board before delivery. In such case, the claims having been allowed and approved, and admitted thereby to be correct, it is the plain duty of the board to draw warrants therefor, to enable the parties whose claims were so allowed and approved to receive payment for the same in due course. To be driven to a suit against the city or the treasurer, as suggested by the appellant, would not afford a plain, speedy, or adequate remedy. "It has been held in this state that to supersede the remedy by mandamus the party must not only have a specific adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus." (Raisch v. Board of Education,
The judgment is affirmed.
Garoutte, J., and Harrison, J., concurred.