
    * Joel B. Burnet v. the Auditor of Portage County.
    A writ of mandamas will lie against an officer vested with discretionary power who wholly refuses to perform his duty.
    It is, also, an appropriate remedy against an officer who refuses to perform a merely ministerial duty.
    But the writ will not be allowed against a County Auditor who refuses to audit an assistant appraiser’s account, that has not been finally acted upon by the County Commissioners.
    Tbe act allowing a per diem compensation to assessors, (Swan’sStat. 79, sec. II), gives a rule by which the account is to be made up, but does not fix its amount.
    This is an application for a writ of Mandamus to the Auditor of Portage county, to compel him to audit and allow an account against the county of Portage, amounting to $88, for forty four days labor performed as assistant appraiser of real property.
    The relation sets forth sundry presentations of the account to the auditor, and his uniform refusal to audit and allow it. The last presentation was on the 9th day of September, 1841, at which time there was appended to it an affidavit, by the relator, that the account was just, and was still due. At the September term, 1841, of the Supreme court, a rule was entered, requiring the auditor to show cause, if any he had, why a writ of mandamus should not issue against him, to compel him to audit and allow this account.
    The'auditor, in obedience to this rule, answers, setting forth, that his predecessor had audited and settled an account of the relator, for one hundred and forty-three days services as assistant appraiser, amounting to $286. That the present account had also been presented to his predecessor, who deemed it unjust, and referred it to the commissioners of the county. That the aggregate amount of allowances for the appraisal of real property was $650 25. That the commissioners, having ascertained that the sum paid by the county of Trumbull, containing fifteen townships more than the county of Portage, was less than $400, required of the relator, on his presenting *this claim, an account of the whole-number of the days of [55 service, rendered by him, verified by oath, which account, so attested, he has failed to render ; and that the auditor, finding the matter thus in the hands of the commissioners, he considered it improper for him to interfere.
    Lucius V. Bierce, for Burnet.
    If an auditor refuse, in a proper case, to give an order for fees due, he may be compelled by mandamus. Smith v. Commissioners of Portage county, 9 Ohio, 25.
    Otis, for defendant.
    If the relator have any claim against the county he has mistaken his remedy.
    The superintending control over inferior courts, magistrates, corporations, etc., by mandamus, is in subsidium justitice. In the case of the King v. Archbishop of Canterbury, etc. 15 East. 117, Lord Ellenborough said; “ This court, in the exercise of its authority to grant the writ of mandamus, will render it, as far as it can, the suppletory means of substantial justice, in every case where there is no other specific legal remedy for a legal right; ” cited in the ease in the 19 Johns. 484.
    When a party has an adequate remedy by action, by the usual and ordinary proceedings at common- law, a writ of mandamus will never be granted. This is the settled law upon this subject. This was the decision in the case of Ripley v. Mechanic’s Bank, 10 Johns. 484.
    Under this rule, the question then arises, can the relator be aided in the collection of his claim against the county of Portage by a writ of mandamus. The 19th section of the act entitled “ an act to provide for the revaluation of real estate in this State,” provides — “That the appraiser in each county, appointed in conformity with this act, shall receive, for each day he shall be employed in performing the duties thereof required of him, the sum of two dollars, to be paid out of the respective * county treasuries.” Whenever, therefore, the [50 labor was performed by the appraiser, under this act, a debt was created against the county, and the laiv would raise an assumpsit on tbe part of the county commissioners, to pay the same; and his remedy, by action of assumpsit, would be as full and adequate for his redress as though the claim existed against an individual.
    Should the county auditor refuse to audit a just account against the county, such refusal would still leave the party to his remedy, by action against the commissioners, to recover the amount due him on such account.
    But, again, when a discretionary power is vested in officers, and ■they have exercised that discretion, a mandamus, to them, will not be granted. 12 Johns. 414. “ When an officer refuses to act, ‘ the court will interfere by mandamus, so far as to set the jurisdiction of the officer in motion,’ by compelling him (as in this instance) to allow, or disallow, the account, but not, in any manner, to direct or control his discretion.”
    While the compensation for each day’s services is fixed by the legislature, the auditor is still left to the exercise of his discretion, in determining the number of days which the appraiser has actually been employed in the business of his appointment. The testimony offered to establish this fact, he is to act upon, and upon it he is to determine.
    The cause shown by the auditor, for not allowing the claim of the relator, is, that he believed it to be unjust. That it was some two hundred dollars more than was allowed by the auditor of Trumbull county, for a far greater amount of similar services, and that he required of the relator some evidence that his account against the county was just and true ; aud such evidence, too, as it was in the power of the relator to furnish, that is, a bill of his whole services as appraiser, verified by affidavit, or by his own oath ; and upon his refusal to furnish this evidence the auditor refused to allow his account. This is the official delinquency sought to be rectified by the mandamus of'this 57] court. Conduct which can only be regarded as the * prudent exercise of discretion vested in the auditor by the laws of the state.
   Birchard, Judge.

The case of Smith v. The Commissioners of Portage county, 9 Ohio, 25, is cited to show, that if an auditor refuse, in a proper case, to give an order for fees due, he may be compelled to do it by mandamus.

Recognizing that authority in its fullest extent, the question arises, is this a proper case for its exercise ? The duty of the auditor is prescribed by the 12th section of the statute. Swan’s Stat. 109. He is to settle all accounts, debts and demands, justly chargeable against the county, and which are not directed by law to be settled and allowed by some other person or tribunal, etc.; “ and for all demands against the county, the amount of which is fixed by law, he shall issue orders on the treasury of the county.” If the amount of this account is fixed by law, and within the meaning of the act, the writ prayed for should be allowed ; for, in that case, the duty to be performed would be merely ministerial, and a writ of mandamus would be a proper remedy. So, if vested with a discretion, the .officer should refuse to act. In this case, however, the auditor has acted by rejecting the account. The proper remedy, if the account be just, and the auditor authorized to audit it, is an action of assumpsit against the county. It can not be contended that the amount of the account is fixed by law, for the law only professes to fix the per diem at $2. This is but a rule for fixing the amount of the account; and whether it should be $84, or a less sum, depends entirely upon the amount of services performed.

The case, upon paper, shows a difference of opinion between the authorities of the county and the relator, respecting the amount of services rendered.

It is a question upon which the county has a right to be heard before a jury of the country. That right would be sacrificed by proceeding in this summary manner, were there no other obstacle in the way. But there is another objection. The eighth section of the act entitled “ an act for the election of county assessors,” (Swan’s [58 Stat, 78, sec. 8,) makes it the duty of each assessor, and deputy assessor, at the end of each week in which he shall have been engaged in the performance of his duty, to enter an account, in writing, of the number of days, or parts of .days, Iiq may have been engaged during the week, and at some stated meeting of the commissioners to present such original account to them; to testify, under oath, to the accuracy of the' account, and to answer such questions respecting the same as they may put to him. The auditor’s answer shows that the relator has totally neglected to comply with this part of his duty; and the relator is silent upon the subject. The amendatory act (Swan’s Stat. 79, sec. 11,) allows the $2 per day to the assessor and deputy only for each day that the county commissioners shall be satisfied “ they were employed in the discharge of the duties required of them by law.”

These statutes show that this proceeding was instituted under a misapprehension of the duties of the county auditor. The account must be acted upon by the commissioners of the county, and they must be satisfied of the performance of the service, before the auditor can legally issue any order upon the treasury. The case made, as we understand the law, would not sustain an action against the county. Much less this proceeding.

The board of commissioners must first act in the matter: That is the tribunal which the law has provided for settling the question; and when adjudicated there, the decision will be final, unless vacated by an appeal to the court of Common Pleas, as provided for in Swan’s Stat. 207, see. 16.

In this ease the writ can not be allowed.

Judgment accordingly.  