Shaber

This is an application for a mandamus, to compel the respondent, as Treasurer, to pay a certain claim out of moneys in the treasury.

It appears from the petition, that on the 13th day of July, 1878, one J. C. Smith commenced an action against the City and County of San Francisco, in the District Court of the Fifteenth Judicial District, in and for said city and county, to recover damages for injuries to property in said city and county, caused by mobs and riots, which action was defended by said city and county; that such proceedings were had therein that said Smith recovered a judgment against said city and county for $65,273.76 damages, and $912.50 costs, which judgment was entered August 26th, 1879; that on the 1st day of September, 1879, said Smith presented to the Board of Supervisors of said city and county a certificate of the Presiding Judge of said Court, a certificate of the clerk of said Court, and a copy of the judgment roll in said action, together with a written demand, verified, for the payment of said judgment; that on the 30th of October, 1879, said Board of Supervisors, acting on the opinion and advice of the then Attorney and Counsellor for said city and…

I dissent. I think the writ should be denied, for the reason that we cannot, in this proceeding, treat the appeal taken by the City and County Attorney as a nullity. In my opinion, how *328 ever, when the Board of Supervisors directed the judgment that had been recovered by Smith against the City and County of San Francisco to be paid, it was, in effect, an ending of the controversy, and a determination by that body not to take an appeal from the judgment. And I think it cannot be doubted that the Board of Supervisors had the power to stop the litigation by directing payment of the judgment, rather than put the city and county to further cost in the prosecution of an appeal, which, as shown by the record in this proceeding, they considered, after consultation with the late City and County Attorney, who was the attorney who tried the cause, would be a fruitless appeal. (Board, of Supervisors of Orleans County v. Bowen, 4 Lans. 30, 31 .) The record here shows that after this action on the part of the Board of Supervisors, after the resolution directing payment had been approved by the Mayor, and after the claim had been presented to the Auditor and indorsed “ allowed,” and after it…

I dissent. In my opinion, this application cannot be granted consistently with the law relating to mandamus.

1. If the act is not one which the law specially enjoins the performance of by the Treasurer, as a duty resulting from his office, the writ ought not to issue. (Code Civ. Proc. § 1085.)

It is conceded that an appeal is pending in this Court from the judgment which the Board of Supervisors ordered to be paid, and which the Treasurer refuses to pay because of the pendency of such appeal. One effect of an appeal is to stay all further proceedings upon the judgment appealed from until the determination of the appeal. If we accord to this appeal that effect, it operated ipso facto as a stay from the time it was perfected. That such was, and is, the effect of it, seems too plain for argument. But it is contended, however, that the appeal was improperly taken, because the Board of Supervisors did not direct it to be taken, but, on the contrary, ordered the judgment to be paid before the appeal was taken. Was that a proper matter for the Treasurer to determine ? If, instead of an appeal being taken, an injunction which forbade his paying the judgment had been served upon him, no…