Morton

This is an original proceeding in mandate, brought -to compel the auditor, as- the performance of an official duty, to compute and enter the taxes upon the assessment-roll in conformity with the rates fixed by orders of a body claiming to be the board of supervisors of the city and county of San Francisco, which body for convenience may hereafter be designated the old board.

The auditor made answer. Certain facts were admitted; to others, upon which issue was joined, evidence was addressed. They will be set forth as may be necessary for the consideration of the legal propositions calling for determination.

1. By respondent.it is first insisted that as there aTe two bodies, each claiming to be and acting as the board of supervisors, before the writ prayed for may issue title to the office must be tried; that mandamus will not lie to try title to office, and that therefore the application for the writ must be denied. The facts bearing upon this matter are the following: A proceeding was instituted in the superior court based upon the provisions of article XIV, section 1, of the constitution, and upon an act entitled “An act to enable the board of supervisors,” etc. (Stats. 1881,…

concurring. Section 1 of the act of the legislature found in the Statutes of 1881, which deals with the fixing of water rates, casts a duty upon the board of supervisors of the city and county of San Francisco of fixing those rates in the month of February of each year. Section 8 of the same act declares: “Any board, of supervisors or other legislative body of any city and county, city, or town, which shall fail or refuse to perform any of the duties prescribed by this act at the time and in the manner hereinbefore specified, shall be deemed guilty of malfeasance in office, and, upon conviction thereof at the suit of any interested party in any court of competent jurisdiction, shall be removed from office.” The board of supervisors of the city and county of San Francisco failed to fix water rates in the month of February, and thereupon, at the suit of one Fitch, and under the authority found in the aforesaid section of the act of 1881, the supervisors of said city and county have been removed from office by the judgment of the superior court.

The construction given this act by the learned judge of the trial court, as evidenced by the judgment rendered, is that the *488 word…