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district, the presentation and rejection of a claim for the contract price which failed to have the superintendent's certificate attached, should not bar action by the supervisors upon a subsequent presentation of the claim which has the proper certificate attached, and which is presented against the fund. mentioned in the contract, and asks for warrants against that fund, and the supervisors may be compelled by mandamus to act upon such second claim. Smith v. Supervisors San Bernardino, 99 Cal. 262.

The following earlier cases show a variety of instances where mandamus will and will not lie against supervisors and other county officers.

It was held that where the board of supervisors have not acquired title to a lot of land upon which to erect a high school building, they cannot be compelled by mandamus to estimate the cost of erecting a county high school building, furnishing the same and conducting the school for twelve months. [Stats. 1891, p. 57.) Martin v. Board of Supervisors, 103 Cal. 668.

It is a well settled rule of the common law, that the title to an office cannot be tried by mandamus. Such a writ can give no right, not even the right of possession, although it may enforce one. It may be resorted to for the purpose of putting a claimant in a position to assert his right, when without that, he could not do so. It may be used to compel an officer of an election to give a claimant a certificate of

an assess

election. Mandamus will not lie when the office is full. People v. Olds, 3 Cal. 175; Turner v. Melony, 13 Cal. 621; Meredith v. Supervisors, 50. Cal. 433.

The collector of taxes is not a necessary party in an application for a writ of mandate to compel an auditor to enter on ment roll the delinquent taxes of the preceding fiscal year. People v. Ashbury, 46 Cal. 523.

In a proceeding by mandamus commenced by a county against its officers, to compel them to hold their offices at the county seat, in which an issue arises as to which of two places voted for as county seat received a majority of the votes, one of the places voted, for cannot appear as party to the action. Calaveras County v. Brockway, 30 Cal. 326.

An application for a writ of mandate to com pel the performance of some act in which a large number of individuals are interested, which is made in the name of the people, and is not signed by the attorney-general, but by an attorney of the relator, will not be dismissed because not made in the name of some interested party, if the attorney-general unites in the brief in support of the application. People v. Board of Supervisors, 36 Cal. 595.

In an application for a writ of mandate to compel a board of supervisors to levy a tax, the county into whose treasury the money intended to be raised by the tax will go can be the relator. People v. Board of Supervisors, 26 Cal. 642.

A board of supervisors, in canvassing the

returns of an election, and declaring the result, do not act in a judicial but in a ministerial capacity. Calayeras County v. Brockway, 30 Cal. 338.

Boards of supervisors cannot be sued in their official character, in ordinary common law actions, for claims against the public, county or village they represent, without express statutory provision. Hastings v. City and County of San Francisco, 18 Cal. 49.

The board of supervisors has no power to cancel any taxes, or the assessment for any taxes, except such as are contained in the list by the auditor and taken by him from the delinquent list, and as to which the collector has made affidavit that "he has not been able to discover any property belonging to or in possession of the person liable to pay the same (taxes) whereof to collect them." People v. Ashbury, 46 Cal. 523.

Where, pending an application for a writ of mandate to a county treasurer, his term of office ceases, but judgment is afterward rendered against him, and the writ issued, the judgment and writ have no force against his successor. Ex parte Tinkum, 54 Cal. 201.

One having title to the office of district attorney, but not in possession, is not bound by a judgment in mandamus against a board of supervisors to which he was not a party, requiring the board to audit and allow the salary of another in possession of the office without title. People v. Smyth, 28 Cal. 21.

Mandamus may be resorted to to compel an officer to do an act which is sought to be enforced, in all cases where the officer has no discretion, and where he is under obligation to do the specific act, and there is no adequate remedy in the ordinary course of law. McDougal v. Bell, 4 Cal. 177; Carpenter v. Loucks, 28 Cal. 69; Babcock v. Goodrich, 47 Cal. 488; Hamilton v. Tutt, 65 Cal. 57; Careaga v. Fernald, 66 Cal. 351.

Mandamus lies to compel restoration to office, to restore attorneys who have been stricken from the roll of the court. People v. Turner, 1 Cal. 144.

To compel certificate of election, or administration of oath of office. People v. Olds, 3 Cal. 175.

Mandamus is proper remedy to compel board of supervisors to levy tax required by law to pay legal claims or bonds. Scher v. Board of Supervisors, 39 Cal. 134; Robinson v. Board of Supervisors, 43 Cal. 353; Meyer v. Brown, 65 Cal. 583.

If the board of supervisors refuse to audit an account, mandamus is proper remedy. Tuolumne County v. Stanislaus County, 6 Cal. 440; People v. Board of Supervisors, 11 Cal. 42.

An auditor cannot refuse to draw a county warrant because there is no money in the treasury, and the writ of mandate is the proper remedy against the auditor who refuses to issue a county warrant when directed to do so by the board of supervisors. Babcock v. Goodrich, 47 Cal. 488.

When a judgment is rendered against the county, it is the duty of the board of supervisors to apply such funds in the treasury of the county as are not otherwise appropriated, to its payment; or, if there are no funds, and they possess the requisite power, to levy a tax for that purpose; and if they fail or refuse to apply the funds, or to exercise the power, resort may be had to mandamus. Emeric v. Gilman, 10 Cal. 404; Crocker v. Wolson, 30 Cal. 666; People v. Board of Supervisors, 21 Cal. 669.

Railroads concern the public interest, and where the board of supervisors of a county are empowered to rubscribe for the county to the capital stock, they may be compelled to subscribe by writ of mandate. Napa V. R. R. Co. v. Board of Supervisors, 30 Cal. 435; Cal. N. R. R. Co. v. Board of Supervisors, 18 Cal. 671; Stockton R. R. Co. v. Stockton, 51 Cal. 328; Santa Cruz R. R. Co. v. Supervisors, 62 Cal. 239.

Supervisors cannot be compelled by mandamus to order an election to fill

vacancy existing in a county office. People v. Supervisors, 14 Cal. 102.

In an action of mandamus against a board of supervisors, its answer in the case should be made in its aggregate capacity. The answer need not aver that it was approved by order of the board, but one or more of the board cannot answer separately. The fact that the answer is verified by one of the members does not make it his individual answer. People v. Supervisors, 27 Cal. 655.

The county treasurer may be compelled by

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