Appeal from the Fifteenth District.

Application for mandamus to compel the Board of Supervisors of Butte county to issue $32,000 of Butte county bonds, under the Act of March 14th, 1860, (Stat. 1860, 90) and the Act of March 29th, 1860, (Stat. 1860, 133) amendatory thereof.

Upon the application to the Board for the issuance of the bonds to the Railroad Company, one Clymer, citizen and tax-payer of the county, filed a remonstrance against the issuing of the bonds, but upon what grounds does not appear. The Board decided against the remonstrance, and further decided to issue bonds to the amount of $10,000. Whereupon, within ten days after the decision, the remonstrant began an action in the District Court in the nature of a bill in equity, but for what purpose is not shown, except that it was to test the action of the Supervisors. ISTo writ of certiorari for injunction order was asked or issued.

After hearing the original application to issue the bonds, the Supervisors found the following facts :

1. That the Railroad Company had given to the County of Butte the bond for $100,000, as required by Section 6, Laws of 1860,135, which bond was accepted and approved by the Board of Supervisors.

2. That the Railroad Company had executed a first mortgage upon all the property, franchises, etc., etc., as provided in Section 3,133, to secure first mortgage bonds of the Railroad Company for $850,000 only.

3. That bonds so secured were tendered by the Railroad Company to the Board of Supervisors to the amount of $33,000, and the Board requested to issue to the Railroad Company a like' amount of county bonds in pursuance of Section 3, pp. 133, 134.

That the Railroad Company, prior to the application for said county bonds, and prior to doing the work hereinafter mentioned, had entered into a contract with Chenery, Binney & Co. for the constructing, furnishing and entire equipment of the railroad from Oroville, Butte county, to Marysville. (Statutes 1860.)

5. That the Railroad Company had, by its said contractors, entered upon the construction of the railroad between said points, and had, up to the time of said application for bonds, graded thirteen miles of said railroad.

6. That by the terms of the contract between relator and said Chenery, Binney & Co., the contract price for said thirteen miles of grading was $97,500, which sum was paid by the Railroad Company to said contractors in cash, in pursuance of the terms oi said contract. The balance of the price for grading and fully completing the railroad and furnishing the rolling stock and equipments, is payable, in stock of tho Company’s fii’st mortgage bonds and Butte county bonds to be issued under said act.

7. The amount of expenditures by. the Company for said grading was ascertained and determined by the estimate of the chief engineer of the Railroad Company having charge of the construction thereof. It was upon such facts and estimate that the Company asked the issuance of bonds to the amount of one-third of said expenditures, viz: $33,000, claiming that the basis upon which the Butte county bonds are to be issued is the expenditures of the Company according to its contract price, and not the actual expenditures of the contractors or subcontractors under the Company. On the other hand, the Board of Supervisors assumed the right to inquire into the actual cost of such grading—that is, how many yards of earth were moved; what distance; how many yards of filling, of cuttings, of embankments, etc., etc., and xvhat were the number of days’ work of men and teams occupied in doing such grading, and all the minutiae which make up the cost of doing such work; or, in other words, the Board entered into an estimate of what such grading actually cost, or was reasonably worth. The Board determined that such grading, instead of being worth $97,500—the price paid by the Company—was only worth $30,000, and made an order for the issuance of county bonds on that basis, xdz: to the amount of $10,000. ■ "

The Board, in answer to the application for mandamus, plead : 1st, the proceeding of Clvmer in the District Court in abatement, contending that during the ten days after their decision, they were prohibited by law from taking any action; 2d, that the issuance of bonds xvas matter of'judicial discretion, and that having once acted in .the matter, they cannot be again forced to act; 3d, that they had the poxver to estimate the value of the xvork done by the Railroad Company as the basis for the bonds.

The Court below held that the Board acted right in adopting as the basis for bonds to be issued the actual value of the work done, and hence denied the writ. Relator appeals.