[Syllabus Material] [Syllabus Material] [Syllabus Material]          Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.

         This was an application, on the part of the plaintiffs, to the Court below, for a mandamus to compel the defendants, as a Board of Supervisors of the City and County of San Francisco, to audit an account of the plaintiffs for gas furnished the city for lighting the streets and City Hall, in pursuance of a contract made with the city and James Donahue & Co., and assigned by Donahue & Co. to the relators. The application was made upon affidavit and notice to the defendants. Three separate grounds of defense were set up by the defendants in their answer, as reason why the writ should not issue, but as they were not passed upon by the Court, they are not given. The following is the order of the Court below, granting the writ:

         " On filing affidavits in this cause, and after hearing F. M. Haight on the part of the relator, and F. P. Tracy on the part of the defendants, and due notice having been given of the application according to law: It is ordered, adjudged and decreed that a writ of mandate be ordered to the Board of Supervisors of the City and County of San Francisco, commanding them to audit the accounts of the relator, set forth in the affidavit of J. G. Eastland, which have accrued since the first day of July, 1856, in accordance with the original contract made with James Donahue & Co., and in pursuance of the provisions of an Act of the Legislature, entitled 'An Act for the Relief of the San Francisco Gas Company,' approved March 5th, 1858."

         From which order the defendants appealed to this Court.

         COUNSEL:

         The mandamus, as granted, commands the Supervisors " to audit the accounts of the relator set forth in the affidavit of J. G. Eastland," & c.

         The term audited in reference to demands on the treasury, is to be understood as meaning " passed upon and finally allowed." Consolidation Act, 1856, § 83.

         The Legislature at the session of 1858, passed an Act for the Relief of the San Francisco Gas Company, (Stat. 1858, p. 46) which gives to the Supervisors the only power they have in relation to the claims of the Gas Company. Sec. 1 authorizes them to adjust, audit, allow and cause to be paid, & c., the claims in question.

         Nothing can be more evident than that the Legislature intended to give the Supervisors power to determine how much was due the San Francisco Gas Company, on any bill presented, and never did intend to take away their power to examine and reject any claim that was not due.

         The power to adjust is the power to consider how much, if anything, is due the plaintiffs.

         2d. It is admitted that if it were true that the Supervisors had refused to adjust, audit and allow the claim of the Gas Company, according to law, the Court might properly issue mandamus to put them in motion, and compel them to act.

         But the Supervisors have not refused. They deny it on oath, and the relator does not attempt to prove their allegation.

         3d. The only point in controversy is, whether the Supervisors can be compelled by mandamus to approve a demand of the San Francisco Gas Company for $ 39,601.70, when there is proof offered them that that sum is due.

         The Supervisors maintain that no Court can, by mandamus, take away from them the right to examine this account, and " adjust" it by ascertaining how much is due on it. They require, of course, some proofs or vouchers to show the amount of indebtedness, and have a right to a reasonable time for their examination.

         But the Gas Company, not content with the pound of flesh to which it is entitled by law, undertakes to obtain a mandamus, which shall compel the Supervisors to allow their demand for the exact sum of $ 39,601.70, without examination or proof, and when they dispute their indebtedness to that amount, and deprive them of their right to a jury trial to ascertain the amount.

         This is perhaps the first case where any Court has issued mandamus to compel the allowance and payment of a specific sum not ascertained to be due .

         Mandamus is not the process to ascertain an indebtedness and liquidate an open account.

         The mandamus, as well as the petition, is in its terms a cheat and fraud on the part of the relators.

         Both the petition and the writ, as drawn by the counsel for the relator, carefully exclude the words of the Act which give a discretion to the Supervisors. They drop and keep out of sight the word adjust. They do not require that the Supervisors shall allow such sum as they find to be due, but that they shall allow the claim for $ 39,601.70.

         4th. Mandamus will issue to the Supervisors to compel them to act upon a demand--to set them in motion--but not to control their discretion or oblige them to allow specific sums.

         The appellant relies upon the authorities in the respondent's brief to sustain this doctrine which has again and again been held by this Court.

         5th. The appellant submits that it does not object to the issuance of a mandamus, if the relator desires it to require the Supervisors in the language and true intent of the Act, (Stat. 1858, p. 46, sec. 1) to adjust, audit, allow and cause to be paid, etc., the demand of the relators for such sum as shall be found to be due according to the contract mentioned in relators' affidavit, and the provisions of law in relation thereto.

         But they say, the judgment of the Court below ought not to stand, for the foregoing reasons and for those set forth in the defendant's answer.