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County of Orange v. Backs

77 Cal. App. 744 Court Second Appellate District, Division Two. Decision date 1926-05-03 Docket Civ. No. 5305 English

Delivered by CRAIG, J.

Contents

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p. 744
[Civ. No. 5305.
Second Appellate District, Division Two.
May 3, 1926.]
COUNTY OF ORANGE, Petitioner, v. J. M. BACKS, County Clerk, Respondent.

Headnote

[1] Public Officers—County Clerk—Authentication of Proceedings of Board of Supervisors—Ministerial Duty.—The duty imposed upon the county clerk, as ex-officio clerk of the board of supervisors, by section 4038 of the Political Code, to authenticate with his signature and the seal of the board the proceedings of the board whenever they shall have been ordered published, is a ministerial, duty, the performance of which can be made contingent upon no other consideration than the order of the board, and he cannot dispute the legality bf the actions which they have taken upon constitutional or other legal grounds.
(1) 38 C. J., p. 598, n. 64, p. 658, n. 31, p. 721, n. 72.
1. See 7 Cal. Jur. 448.
APPLICATION for a Writ of Mandate to compel a county clerk to attest an ordinance calling a special election.
Writ granted.
The facts are stated in the opinion of the court.
Alex P. Nelson and Clyde Bishop for Petitioner.
L. A. West for Respondent.

The petitioner prays for a writ of mandate directing the county clerk, as ex-offioio clerk of the board of supervisors of Orange County, to attest an ordinance calling a special election for the purpose of determining whether or not certain bonds shall be issued for harbor improve

p. 745
ments. This he has refused to do,. upon a number of grounds involving the constitutionality and legality of the issuance of the bonds if they should be voted.

[1] Section 4038, subdivision 8, of the Political Code makes it the duty of the clerk to authenticate with his signature and the seal of the board of proceedings of the board whenever they shall have been ordered published. This is purely a ministerial duty, the performance of which can be made contingent upon no other consideration than the order of the board of which he is ex-officio clerk. He cannot dispute the legality of the actions which they have taken upon constitutional or other legal grounds. (Marin Municipal Water Dist. v. Dodge, 172 Cal. 724 [ 158 Pac. 187 ]; City of Los Angeles v. Lelande, 157 Cal. 30 [ 106 Pac. 218 ] ; Thoits v. Byxbee, 34 Cal. App. 226 [ 167 Pac. 166 ].)

The writ is granted.

Works, Acting P. J., and Conrey, J., pro tern., concurred.

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