Wood v. Strother

Citations

• 76 Cal. 545
• 18 P. 766
• 1888 Cal. LEXIS 931

Syllabus

<p>Mandamus—Act Involving Discretion or Exercise of Judicial Power. — The test for the issuance of a writ of mandamus to compel a board, tribunal, or officer to do an act which he has refused to do is not whether ' the refusal involves the exercise of discretion or an exercise of judicial power, but whether it was a determination which the law intended to be final; and if not, whether there is a plain, speedy, and adequate remedy in the ordinary course.</p> <p>Street Assessment — Countersigning of Warrant by Auditor. — The provision of the consolidation act of San Francisco requiring the auditor to examine the proceedings in relation to a street assessment before countersigning the warrant, and providing that he “ must be satisfied that the proceedings have been legal and fair,” was not intended to make the determination of the auditor a final disposition of the matter; and if the proceedings were in accordance with the requirements of the act, mandamus will issue to compel him to countersign the warrant.</p> <p>Id.—Second Assessment after First has been Adjudged Void—Reasonable Time. — If an assessment has been adjudged to be void for causes affecting the assessment itself, and not the proceedings upon which it rests, a new assessment may he made within a reasonable time. Instance of time which was not unreasonable under the circumstances.</p> <p>Id. —Payment of Part of the Void Assessment. —The fact that some of the owners have paid what was charged against their property by the void assessment is not of itself a reason why a valid assessment should not be made. Semble, that the contractor would not be allowed to collect twice from the owners who had paid, but that a court of equity would treat the payments made as payments in advance, and would compel the contractor to satisfy the second assessment of record.</p>