
    The Board of Police of Attala County vs. Alexander M. Grant.
    In applying for a mandamus, the usual course is, to obtain a rule on the defendant, to show cause why a mandamus should not issue, and if the cause should be deemed insufficient, then a mandamus in the alternative issues, to which a return is to be made ; and if good cause is not thereby shown for not doing the thing, then a peremptory mandamus issues ; but a peremptory mandamus will not be granted in the first instance, except in remarkably clear cases.
    By the common law, the return to a mandamus in the alternative, is to be taken as true, and the aggrieved party is left to his action for a false return.
    By moving for a peremptory mandamus upon the petition and answer, the truth of the answer is admitted; and on a similar motion, on a showing against a rule to show cause why a mandamus should not issue, the truth of the showing is admitted.
    A mandamus is the appropriate remedy to' compel public functionaries or tribunals to perform some duty required by law, where the party has no other remedy ; but the right or duty sought to be enforced must be certain, or the mandamus will not lie.
    Upon an application for a mandamus, the court cannot enter into an inquiry to ascertain the facts ; they are to be shown by the return, or by a judicial determination in an action for a false return, and when so ascertained a mandamus may issue.
    A court may be compelled by mandamus to proceed to judgment, but it must exercise its discretion as to what that judgment shall be; the court granting the mandamus cannot say what judgment shall be given.
    If a board of police gives a judgment which is unsatisfactory, to one asserting a claim against the board, and who is a party to the judgment, he may appeal to the circuit court ; but he cannot have the judgment corrected by mandamus.
    The clerk of a board of police is authorized to issue a warrant on the county treasury for any allowance made by the hoard, and the treasurer is authorized to pay such warrant. But the board of police have no power to issue such warrant; and if they should, the treasurer is not bound to pay it.
    If a party has a claim against a board of police, a mandamus is the proper remedy to compel the board to proceed to render a judgment; but when a judgment has been entered, the board cannot be required to enter a new judgment, nor can the circuit court render a new judgment and require the board to enforce it.
    When a party is entitled to a warrant on the county treasury on a judgment of the board of police, and there is no money in the treasury, a mandamus would undoubtedly be the proper remedy to coerce the board to levy a tax for the payment of his warrant.
    Whether the boards of police are to be regarded as courts, or as quasi corporations. Qucere ?
    
    ERROR from the circuit court of Attala county j Hon. Morgan L. Fitch, judge.
    Alexander M. Grant filed his petition in the circuit court of Attala county, stating that he contracted with the board of police of Attala county to build a court house, according to certain specifications and a plan, which were entered upon the minutes of the board, a certified copy of which was made exhibit A to the petition. That petitioner was to build and complete the house on or before the first day of January, 1839, and he was to receive therefor the sum of $14,500; one half of which was to be paid when the building was raised and covered, and the other half when the building was finished; that their contract was also entered on the minutes of the board, and he filed a certified copy thereof as exhibit B., and he executed bond with good security for the faithful performance of his contract. That by a subsequent agreement with the board, he was to receive $500 for putting a hip roof on the building, which he did, as would appear by a copy from the minutes of the board marked C. That he completed the court house according to the specifications and plan agreed upon, except in the particulars in which the same were changed by agreement with the board, and the building so completed was received by the board on the 3d day of December, 1838, and his bond delivered up to him with an entry of satisfaction upon the same, which bond was made an exhibit to the petition. That the building was erected and covered on the 2d day of July, 1838, as would appear by a certified transcript from the minutes of the board, made an exhibit to the petition. That the board had paid him at sundry-times different sums, amounting in the aggregate to $5422 76, and he made certified statements of the warrants issued in his favor exhibits to the petition; and that there was a balance then due him of the sum of $9277 24, or thereabouts, which, with interest up to the time of filing his petition, amounted to $12,155, or thereabouts. Petitioner stated that he had repeatedly applied to the board for payment of the sum due him, and had often requested them, if there was no money in the treasury of the county, to levy a tax upon the citizens thereof, to raise the amount owing to him; and that the board had refused repeatedly to pay him the money, or to levy a tax to raise money to pay him, or to draw any warrant on the treasurer of the county-in his favor, or to provide in any way to remunerate him for his labor. The members of the board of police were made defendants, and the prayer was that a mandamus should be issued, commanding them to give petitioner a warrant upon the treasurer of the county, commanding him to pay over to petitioner the sum of money due him out of any money in the treasury; and further directing them to levy a special lax or rate upon the inhabitants of the county, sufficient to pay the debt due petitioner, in the event that there was not a sufficient sum in the hands of the treasurer to pay him; which fact he prayed they might be directed to ascertain, and state to the court, for the issuance of a notice, and that the members of the board might be compelled to appear and show cause why a mandamus should not be issued. The petition was verified by affidavit, and the notice was directed to be issued according to the prayer of the petition, by the Hon. J. R. Nicholson. At the October term, 1841, the defendants answered the petition, stating their reasons why a mandamus should not be issued. They insisted that the petition should not be considered by the court, because the petitioner had a full and adequate remedy, either in a court of law or chancery, on the subject-matter of the petition, and he was not, therefore, entitled to a remedy by mandamus. That it was not competent for the court to grant the mandamus as prayed for, as the mandamus, if granted, would command the doing of more than one single act, and would be for more than one single purpose. That the board of police for the time being, did not appoint two respectable citizens of the county as commissioners to plan, and carry into effect by drawing the draught, superintending the foundation, and erecting and completing of the court-house mentioned in the petition, as by the statute in such case made and provided it was required. That in consequence of the omission on the part of the board of police to appoint such commissioners, the contract was illegal and void. That petitioner, in building the court-house, did not perform his contract according to the plan and specifications by which he agreed to be governed. That the work was so badly done that the walls were then very much cracked, the roof leaked badly, the plastering had nearly all fallen off, and the floors were very much warped. That fraud, concealment and unfairness were practised by the petitioner on the board, none of the members of which, except one, and that one was opposed to receiving the building, were judges of work, or knew whether it was well or badly done; that the board were imposed on when they received the house, and gave up petitioner’s bond as stated in the petition. The board were not then aware of, and could not discover many and great latent defects in the character of the work, which have since become manifest to all. That the amount acknowledged by petitioner to have been received, was greatly more than the whole building was worth, considering the manner in which the work was done ; and he ought in justice and equity to return them a large portion of the money already paid him. It appeared by certified transcripts from the minutes of the board, made exhibits to the bill, that on the 16th day of June, 1838, the board ordered that the work, so far as it related to raising the walls and constructing the roof, be received, and that Grant be paid the sum of $>7600, and that on the 3d day of December, 1838, it was ordered by the board, that the court-house being completed, except the painting, on account of which a deducting was made of $500, that the same be received, and that Grant be granted a warrant on the county treasurer, payable out of the lot fund, for the sum of $7100. Upon the foregoing petition, exhibits, and answer, the court ordered “ a peremptory mandamus to be issued, directed to the board of police, commanding them forthwith to issue their warrant, duly signed and countersigned, upon the treasurer of At-tala county, directing him to pay over to the said Grant the sum of $12,155, with interest, at the rate of eight per centum per annum, from the 11th day of September, 1841, till paid, out of any money in the treasury not otherwise appropriated ; and further commanding the said board of police, in the event there is not sufficient money in the treasury of said county, not otherwise appropriated, to discharge the sum aforesaid due to the said Grant, forthwith to levy a tax or rate upon the citizens of Attala county for an amount sufficient, and for the special purpose of paying off and discharging the sum aforesaid, aud to direct the payment of the same to said Grant, on the warrant heretofore directed and ordered to be issued to the said Grant. It is further ordered by the court, that the said board of police pay the costs which have accrued in this application for a mandamus, and that the treasurer of said county pay the same out of any money in the treasury not otherwise appropriated.” To reverse which judgment the board of police now prosecute this writ of error.
    
      William Thompson, for plaintiffs in error.
    It is contended for the plaintiffs in error, that the judgment of the circuit court should be reversed; first, because from the relator’s own showing in his petition, this is a case in which by law a mandamus cannot issue. The relator complains that the board of police have made a contract with him for the erection of a court-house, with which they have failed to comply. To which we reply, that, it was as a corporation the board contracted for the building of the court-house; and, like any other corporation, they are liable to be sued at law for a violation of their contract; and that relator having a perfect legal remedy, a mandamus will not lie. That the board of police are liable to be sued upon their contract, see 25 Wend. R. 685, 686; Chitty on Contracts, 225, Springfield edition.
    
      If the board of police are liable to a suit at law for the price agreed to be paid for building the court-house, or upon &■ quantum meruit for work and labor, we presume the opposing counsel will concede that a mandamus will not lie. But we would nevertheless cite some authorities on the subject. See Mea; v. Bank of England, Doug. 524. In that case the court refused to grant a mandamus to the bank, to transfer stock, because there was a remedy by action on the case, if they refuse. This case was cited and approved by the court, in the case of Danforth v. ¡Schoharie and Duanesburgh Turnpike Road, ■12 Johns. R. 227. See also 10 John. 484; 2 Term R. 259.
    We contend that the power to contract, whether it be in individuals, or bodies politic or corporate, necessarily implies a liability to be sued for a violation of contract. We know of no exception to the rule, but that in regard to the sovereign power itself.
    That the board are liable to be sued for neglect of their corporate duty, and that a mandamus will not lie, see The People, Spc. v. The Mayor, 8pc. of the City of New York, 25 Wend. 680.
    Nelson, C. J. in delivering the opinion of the court in the above case, says: “ But after full consideration I feel persuaded that the relator has a perfect legal remedy by action, which upon settled principles forbids a resort to the writ of mandamus. The fifth section of the act of 1840, provides that the associate ■judges shall receive each a yearly salary of $2000, to be paid by the common council of the city, in quarterly payments. Here is a legal duty, enjoined by competent authority, which the corporation are bound to discharge. It is as binding upon them as if entered into under their corporate seal. Full consideration has been rendered in the services of the officer for the liability thus imposed. An action on the case, or assumpsit, will lie for a neglect of corporate duty. This was decided in The Commercial Bank of Buffalo v. Kortright, confirmed in the court for the correction of errors, 20 Wend. 93; 22 lb. 348. See also 7 Cranch, 299; 12 John. 231; 14 lb. 118.”
    Again, we contend that the levying of a tax, which the relator in his petition prayed the circuit court to compel the board of police to do, and which the circuit court in its final judgment commanded them to do, is the exercise of a power not subject to the control of the circuit court by mandamus.
    
    In 5 Comyn’s Digest, 38, letter A, it is said : “ So it (mandamus') will lie against a ministerial officer, to do the act required, where there is no other and specific remedy; but where the complaint is against one who acts in a judicial or deliberative capacity, he may be ordered to do his duty, but the court will not direct in what manner he shall do it. Commonwealth v. Judges of Common Pleas, 3 13inn. 273; Griffith v. Cochran, 5 lb. 87; Commmmealth v. Cochran, 6 lb. 456; Uniied States v. Lawrence, 3 Dali. 42.”
    In the case cited above, in 25 Wend. 685, 686, the court decide, “That these ordinances appropriating money can only be made by the common council, while acting in their legislative capacity. The nature of the power necessarily implies discretion, however plain the duty may be; and where that exists in respect to the act complained of, this remedy (mandamus) will not lie. If this corporation, (say the court) like a state, were exempt from suits at law, perhaps no remedy would exist in behalf of the relator, except an appeal to their sense of justice; being, however, like an individual, subject to the ordinary modes of having legal liabilities enforced against them, if they do not choose voluntarily to discharge them, the legal remedy is open to the party.”
    In relation to the discretion spoken of in the above decision, we would also cite 12 Johns. 415, where the court decide that wherever a discretionary power is vested in officers, the court will not control that discretion.
    We cite, for the consideration of the court, as applicable to the point we raise above, the case of Marr v. Enloe, 1 Yerger, 452.
    Secondly. We contend that the return to the summons or mandamus is, by the law, to be taken as true, and cannot be traversed; that if it states facts which furnish a satisfactory answer, and shows cause why a peremptory mandamus should not issue, the rule must be discharged, or the proceedings staid, till the relator, if he desires to contest the truth of the return, shall have sued the party for a false return, and have obtained a verdict and judgment in his favor.
    The suit for a false return has to be brought in the court from which the mandamus nisi issued. And the doctrine as to the conclusiveness of the truth of the return, is thus laid down by Blackstone : That the return to a mandamus is to be taken as true, and the party put to his action for a false return, the court will for the present believe it, and proceed no further with the mandamus. The injured party may recover damages for the false return, equivalent to the injury sustained, together with a peremptory mandamus to the party to do his duty. We do not undertake to give literally, but most certainly do substantially, the language of the learned author. See 4 Tucker’s Blackstone, 110, 111. The return is taken as true, no answer can be given to it. See 11 Coke, 99, b, (a); Brosius v. Beuier, 1 Har. & Johns. 551.
    The legislature have made no alteration in the common law rule in the proceeding on the writ of mandamus.
    
    Nor is the state of Mississippi singular in leaving the proceed-ure on the writ of mandamus as at common law, for in 2 Pennsyl. R. 518, Gibson, C. J. says, speaking of mandamus, “With us it is supposed to stand very nearly, as it did in England before the stat. 9 Ann, ch. 20.” In the state of New York they have a statute similar to the statute of Ann. See 16 Johns. R. 64.
    We contend then, that as the return shows that the relator is not in equity and justice entitled to the money he claims, the judge of the circuit court, exercising a proper discretion, should not have attempted to enforce its payment by the order he made for a peremptory mandamus. The question of granting a m.an-damus, is one of discretion. 1 T. R. 386; Ibid, 423; 2 T. R. 385. It will not be granted to enforce payment of a demand, which from the return is shown to be unjust. The party will be left to his suit. 16 John. 317.
    The acceptance of the court-house, under the circumstances disclosed in the return, does not conclude the board of police, they can still show the failure of consideration, &c. See Chit, on Con. (Springfied edition, 1839,) 458 and notes.
    
      The order entered by the board, accepting the house and agreeing or directing that it should be paid for, is not a judgment of a court, and cannot be conclusive. It is like an entry on any corporation books, by the lawful representatives of the body politic, it would furnish prima facie evidence in an action of assumpsit, and nothing more. Yalobusha v. Carbry, 3 S. & M. 529; Ross v. Lane, 3 S. & M. 695.
    
      W. Yerger, for defendant in error.
    ■Two cases somewhat similar in some features to this case, have been decided by this court. The first case reported is that of County of Yalabusha v. Carbry, 3 S. & M. 529. In that case the court decided the following points, to wit:
    1.' Where a supposed creditor of a county presents his claim for allowance before the board of police, and the board refuse his application, he may appeal or sue out a certiorari to the circuit court to reverse that judgment, and that judgment is final till reversed.
    2. The board of police for each county has authority to contract for building a court-house.
    In the case before the court, the contract of Grant was made a part of the minutes of the court. By it, he was to be paid one half of his money when the court house was raised and covered in, the remainder when it was finished.
    On the 2d day of July, 1838, (see Exhibit G,) the board of police allowed him $7,600, being the amount then due, the courthouse having then been raised and covered in. Here then, is a judgment of the court in Grant’s favor for that sum, which he has a right to have paid to him. He has been paid of this amount $5,422,76. He has a right to the balance of this judgment and interest, and it is the duty of the police court to assess the same on the county, and the same is to be paid by the county treasurer on the certificate of said board of police. How. & Hutch. 466. Now Grant has applied repeatedly for this certificate or warrant, and the court refuse to issue it. He has also applied for a rate or assessment on the county, but the board refuse to levy it. How can he obtain redress? The only remedy is-by mandamus to compel the couit to do its duty. It has already acted judicially in awarding to Grant the money. All that is now required of it is a mere ministerial act, to compel it to do which mandamus is the proper remedy. 1 Cranch, 187 7 lb. 577; 5 Peters R. 190; 7 Peters 634; 8 lb. 291; 9 lb. 573; 5 Pick. 323; 1 Stran. R. 42; lb. 211; 1 Wil. R. 133; 17 Eng. Com. Law. Rep. 279.
    But again, by his contract, which is entered on the records of the police court, (see Exhibit B,) Grant was to be paid $7,250 when the building was completed and received. On the 3d of December, 1838, by judgment of the court the building was received, and a warrant was ordered to be issued to Grant, “ payable out of the late fund for $7,100.” By the judgment of the court receiving said court-house, Grant was entitled to be paid the second instalment of his contract, and it was the duty of the court to levy an assessment for that purpose, and to give Grant a certificate on the treasurer of the amount due to him “ out of any money in the county treasurer not otherwise appropriated.” Instead of such a certificate, the court awarded him one “payable out of the late fund.” This was not such an one as Grant had a right to demand. How. and Hutch. 466.
    The board of police having entered their contract with Grant upon the minutes of the court, and awarded, on the minutes, payment to him of one half, when the building was raised and covered in, and the remainder when the same was completed and received. And having, by judgment of 2d July, 1838, awarded payment to him of one half of the amount of his contract, and by judgment of 3d December, 1838, received the building from Grant, all power in the said board of a judicial character is at an end. It has no further discretion on the matter, and its judgment in favor of Grant is final and conclusive, and entitles him to the money due upon his contract according to the opinion of the court in the case of Yalabusha County v. Carbry. Some suggestion has been thrown out by the appellants’ counsel that relief might have been had by Grant by an appeal to the circuit court, as pointed out in the case of Yalabusha County v. Carbry. The difference in this particular between the two cases is obvious. In the case of Carbry, it will be seen that Higgins contracted with the board of police for Yalabusha county, and substituted Carbry in his place with the assent of the board. Afterwards he presented his claim to the county to be audited, and for a warrant upon the treasurer, which the board refused, upon the ground that the work was not done according to contract. Here then was a clear case of a judgment of the court against Carbry, from which it was lawful for him to prosecute his appeal. Rut in the case before the court there was^ no judgment from which Grant could appeal, on the contrary the judgment of the court was in his favor; by it, there was awarded to him the amount due by his contract. He complains of no judicial error in the court to his prejudice. His complaint is, that the court having decided in his favor, and entered judgment accordingly, refuse to give him the benefit of that judgment by performing duties, as purely ministerial in signing a bill of exceptions, certifying a record or signing a citation, for a refusal to do all which mandamus will lie. All the action required of the board of police at this time is of a purely ministerial character, to wit, to issue to him the certificate to the treasurer, and to levy an assessment to pay the amount, and that these are proper subjects for interference by mandamus, the cases cited most fully and clearly make out. Such, too, was the opinion of the court in Yalabusha County v. Car-bry, 3 S. & M. 548. The case of Ross v. Lane, 3 S. & M. 695, has nothing in common with the one at bar. That was an application for a mandamus upon a collector to compel him to pay to Lane money,'which by law he had no authority to .pay to Lane, and the case was decided mainly upon special statutes and not upon the general laws. It does not conflict with a single position taken by me. Again referring the court to the written arguments heretofore made, the case is respectfully submitted with a firm belief that the appellee is entitled to relief and has taken the proper methods to obtain it.
    
      Samuel Yerger, on the same side,
    cited the Constitution of Mississippi, Art. 4, Sec. 20, 21, 22; H. & H. Digest, 444 - 5, 454, 466: 1 Johns. Ch. R. 643; 11 Serg. & Rawle, 429; 3 Wheat. 315 ; 13 Johns. R. 561; 3 S. & M. 529 ; 1 Phil. Ev. 340; 3 lb. C. & H.’s Notes, 824, 870, note 344; Fonb. Eq. 641-43, and note; Cooke’s R. 220; 1 Cro. Rep. 137-169; 1 Cow. R. 417; 10 Wend. R. 393; Hargrave’s Law Tracts, 452; 14 Serg. & Rawle, 148; 4 Wash. Cir. Ct. R. 657, 659 ; 5 Mass. R. 344; 4 Rawle R. Ill; 5 Yerger, 83; 1 Peters R. 193; 5 Yerg. 323; 1 Stark. R. 107; 1 Camp. R. 190; 3 Stark. Ev. 1770; 2 Plead. & Ev. 962, 959, 2 Esp. N. P. 663, sec. 7; 3 Bac. Abr. 534-6, D. ; 2 Bouvier’s Law Diet. 92; 10 Wend. R. 366; 10 John. R. 484; 23 Wend. R. 458; 1 Strange R. 42; lb. 211; 1 Wils. 133; 17 Eng. C. L. R. 279; 2 Strange 992; 7 Mon. R. 443; 5 Pick. R. 323; 2 Binney’s R. 275; 18 John. R. 243; 19 lb. 259.
    
      Foote and Hutchinson, on the same side,
    cited 3 Black. 110, 111; Const. Miss. Art. 4, sec. 20; H. & H. 444-445, 466, 453, sec. 41.
    
      Pryor Lea for plaintiff in error,
    cited 2 T. R. 385; 1 Cow. 501; 1 Black. Comm. ch. 18, 381 - 385.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

In the year 1838, the relator, Grant, contracted with the board of police of Attala county for the building of a court-house, which he was to complete, according to the plan, by the 1st of January, 1839. After the work was commenced sundry alterations were made in the plan, for which he was to receive additional compensation. Half the price agreed on was to be paid when the building was covered, and the residue when it should be completed. Part of the first payment was made, but it is alleged that a large balance yet remains unpaid. It appears, from an entry on the minutes of the board, that on the 23d of December, 1838, the building was finished, with some few exceptions, for which suitable deductions were to be made, and it was then ordered that the court-house should be received, and that Grant should receive a warrant on the county treasury, payable out of the lot fund, for $7100, but whether such warrant ever issued does not distinctly appear. It is alleged that repeated applications have been made to the board, without success, to have the whole balance due paid, which is said to be $12155, being the balance due on the first payment, and the last instalment for which the warrant was ordered to issue. The prayer is for a mandamus, by which the board shall be required to issue a warrant on the treasury for the amount due; and in case there should be no money in the treasury, then that the board should be required to levy a special tax for the payment. On this petition noticie was served on the board to show cause why a mandamus should not issue. An answer was filed, denying the relator’s right to receive anything further, because of failure, in various particulars, to comply with his contract; and that he had fraudulently imposed on the previous board in performing the work, which deceptions had since been discovered. It concludes by denying that there is anything due.

On the coming in of the answer, the court granted a peremptory mandamus, requiring the board to pay the amount due; and in case there was no money in the treasury, then that a special tax should be levied sufficient to pay the amount.

In applying for a mandamus, the usual course is to obtain a rule on the defendant to show cause why a mandamus should not issue, and if the cause shown be deemed insufficient, then a mandamus in the alternative issues, to which a return is to be made; and if good cause is not thereby shown for not doing the thing, then a peremptory mandamus issues; but a peremptory mandamus will not be granted in the first instance, except in remarkably clear cases. By the common law the return to a mandamus in the alternative is to be taken as true, and the aggrieved party is left to his action for a false return. The court below seems to have regarded this answer as it would the return to a mandamus in the alternative. By moving for a peremptory mandamus, the truth of the answer was admitted. 25 Wend. 680. And on such a motion the same result follows, if it was regarded as a mere showing against the rule. 1 Wend. 320.

A mandamus is the appropriate remedy to compel public functionaries, or tribunals, to perform some duty required by law, where the party has no other remedy; but the right or duty sought to be enforced must be certain. It will not lie if it is not. 3 Barrow, 1452; 10 Wend. 363; 1 Serg. & Rawle, 474. Hence the return must state all necessary facts, so that the court may give judgment. The court cannot enter into an inquiry to ascertain the facts, and settle unsettled matters; it is not competent to decide on disputed facts. The facts are to be shown by the return, or by a judicial determination in an action for a false return; and when so ascertained, a mandamus may issue. In view of these principles did the state of case presented to the court below, justify the judgment for a peremptory mandamus 7

It is insisted that it did, because the board of police is a court of exclusive jurisdiction, and having received the court-house, and ordered that a warrant should issue, its judgment cannot be collaterally inquired into. It is a point which‘may admit of some doubt whether the boards of police are to be regarded as courts, or as quasi corporations. For some purposes they are certainly to be regarded as courts. We have already decided that an appeal lies from them to the circuit courts, by bill of exceptions, or certiorari. County of Yalabusha v. Carbry, 3 S. & M. 529. Regarding it, then, as a court in this instance, how was a mandamus to operate on it 1 A court may be compelled by mandamus to proceed to judgment, but that it must exercise its discretion as to what that judgment shall be. The court granting the mandamus will not say what judgment shall be given ; that would be to give judgment to be carried out by the inferior court. If it has given one judgment which is final and conclusive, why ask for another? That judgment must be binding, as Grant was in court, and a party to it. If it was unsatisfactory to him, why did he not appeal 1 . The case of The County of Yalabusha v. Carbry, decides that an appeal will lie in such cases. If that judgment is in full force, nothing remains to be done but a ministerial act, and the clerk should have been the defendant in this case. The remedy must be sought against the person who is to do the duty. If, on the other hand, the judgment is not conclusive, and the amount due remains unadjusted, the circuit court could have done no more than to direct the board of police to proceed to adjust it, and award judgment. By the 27th section of the act in relation to the boards of police, the clerk of the board is authorized to issue a warrant on the county treasury for any allowance made by the board, and the treasurer is authorized to pay such warrant. It is not the duty of the court to disburse the money belonging to the county. The judgnent of the circuit court directs that a peremptory mandamus be issued, commanding the board of police “forthwith to issue their warrant duly signed and countersigned upon the treasurer of Attala county, directing him to pay over to said Grant the said sum of $12155, with interest, at the rate of eight per cent.-per annum, from the 11th day of September, 1841, until paid, out of any money in the treasury not otherwise appropriated.” This judgment was erroneous in directing the board of police to issue its warrant; it has no such power, and if such warrant had been issued by the board, the treasurer was not bound to pay it; he is only bound to pay warrants issued by the clerk. But it was erroneous in another particular; it was a judgment for so much money, and the direction was that the mandamus should issue to the board of police, not to carry out or enforce its own judgment, but the judgment of the circuit court.

But the court also erred in entering into a calculation as to the amount due. Accompanying the petition there is a sort of running account, or memorandum of credits, which shows a balance due Grant of $9277, to which interest is added making an aggregate of $12155, which is the amount decreed him by the judgment of the circuit court. The court then undertook to decide from evidence what was due, and it took the statement of Grant as conclusive in the matter. This was done in the face of the answer, which is to be taken as true, denying that anything was due. There were two orders of the board of police in this case; one rendered the 2d of July, 1838, which ordered that Grant should be paid the first instalment of $7600, and the other on the 23d of December, 1838, for $7100. Those orders were either conclusive, or they were not conclusive. If they were regarded as judgments, then the most that could have been granted was a mandamus in the alternative, to carry them out. The circuit court could not render a new judgment as it did, founded on these judgments. It had nothing whatever to do with the amount due. If these orders were not conclusive, then the whole matter was open; nothing was certain ; it stood as a matter of contract; and tire circuit court had no power to settle by evidence the amount due. It is stated in the petition that repeated applications have been made to the board of police for payment, but no application appears to .have been made to the clerk for his warrants. If the board has given judgment, it has nothing further to do in the matter. It can neither alter nor suspend its judgment. The board lias no further control over them.

We recognize the board of police as a court for all the purposes connected with an adjudication on Grant’s claim. If that claim is still open, or unallowed, then a mandamus is the proper remedy to compel the board to proceed to render a judgment; but what judgment is to be rendered in a matter that cannot be regulated by mandamus. If it should be erroneous, the party has his appeal, and may correct it. If such judgment has been rendered, the board cannot be required to enter a new judgment, nor can the circuit court render a new judgment and require the board to enforce it, as was done in this instance. The party is entitled to his warrant on the first judgment, if he is entitled to it at all; and if there be no money in the treasury, a mandamus would undoubtedly be the proper remedy to coerce the levy of a tax. One of these judgments directed the payment to be made out of a particular fund; so far it was directory only; and if there should not be such a fund, the judgment could not for that reason fail. In support of the view taken, in addition to the language of the 27th section of the statute, which requires the clerk to issue his warrant, he may refer to the case of Waldron v. Lee, 5 Pick. 323.

If the party can so modify his remedy as to meet the views here expressed, he may do so, for which purpose the cause will be remanded.

Judgment reversed.  