
    Selby, Auditor, v. The State of Ohio ex rel. Smiley. Selby, Auditor, v. The State of Ohio ex rel. King.
    
      Mandamus does not lie ■respecting an act not enjoined by law— As a duty resulting from office, etc. — Duty of probate court— Section 1120, Revised Statutes — Employment of examiners of county auditor and treasurer offices.
    
    1. Mandamus does not lie to compel the performance of an act which is not enjoined by law as a duty resulting from an office, trust, or station.
    2. Under the provisions of section 11 ?9 of the Revised Statutes it is the duty of the’probate judge to determine and certify the number of days necessarily employed by persons appointed by him for that purpose in mating the examination of the offices of the county auditor and treasurer, and of the auditor to draw warrants in favor of the accountants for the time so certified at the rate per diem fixed by the statute.
    (Decided December 18, 1900.)
    
      Error to the Circuit Court of Trumbull county.
    The relators filed their several petitions in the court of comon pleas of Trumbull county, praying* for a peremptory writ of mandamus against the plaintiff in error to compel the issuance of a warrant on the county treasurer in his favor for $125. Each alleged that he had. been appointed with the other, by the probate judge of the county, to examine and inspect the treasury of said county and of the city of Warren, in said county, and the office of the auditor of said county including all records, vouchers, etc.; that they performed said duty according to law and made report of their examination in triplicate to said probate judge, to the auditor and the-treasurer of the county; that in the performance of said duty they were necessarily employed twenty-five-full days; that they thereby became entitled to receive-$125 each, the per diem of five dollars being fixed by law; that they presented their account therefor to said plaintiff in error whose duty it then was to issue to-each his warrant on the county treasury for the said sum of $125, and that said auditor then refused and has ever since refused to issue the same.
    The auditor answered, admitting his official character and his refusal to issue warrants for $125, and denying all other allegations of the petition. He further alleged that the the probate judge of the-county had never fixed the compensation of the relators at $125, or allowed or .approved their said claims, and that said probate judge had never informed him of said appointment. He further alleged that he had tendered to each of the relators a warrant for $50 for the alleged services, which was, in his judgment, more than said services were worth. The allegations of the answer were not denied. The case was taken by appeal to the circuit court and there tried on these pleadings and the evidence. A peremptory writ was allowed in favor of each relator for the sum of $125.
    
      T. If. Gilmer and E. E. Roberts, for plaintiff in error.
    
      E. B. Taylor, for defendant in error.
   Si-iaitck, C. J.

The office of the writ of mandamus, is clearly indicated by the definitive terms of section 6741 of the Revised Statutes. The writ is there defined in accordance with the view taken by the courts at the time of the adoption of the constitution, and the vesting of jurisdiction of the action. The writ may issue to command “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” It may not issue to compel the performance of an act not so enjoined. The duty of drawing the warrants demanded by the relators is said to be enjoined upon the auditor by the provision of section 1129 of the Revised Statutes that “said accountants so appointed and performing the duties therein required shall be paid five dollars per day for the time necessary to the performance of the same, out of the treasury, on a warrant drawn by the county auditor, and approved by the certificate of said court.” This provision, whether read alone or in connection with other provisions relating to the examination, does not seem to express with clearness any legislative intent suggested by counsel or occurring to us. It is, however, entirely clear that it does not enjoin upon the auditor the duty of drawing warrants in favor of the accountants to compensate them a.t the rate of five dollars per day for as many days as they may claim to have been necessary to the performance of their duties. Obviously, a discretion is to be exercised in determining the number of days necessary. If that discretion is with the probate .judge, the application to the auditor for the warrants was premature, for it is admitted that the probate .judge had not determined what number of days were necessary. If the discretion is wholly or partly with the auditor, he exercised it in tendering warrants covering the time which he thought necessary, and the writ allowed below would have the forbidden effect •of controlling discretion.

The position of the relators assumes that, with respect to the duty of the auditor, the statute gives conclusive effect to the claim by them presented to him. It contains no language giving it that effect. Indeed the statute does not even provide or contemplate that a report of the time occupied shall be filed with the auditor. It is not consistent with the object of the statute that the auditor should determine, or have a voice in determining, the extent to which the transactions of his office shall be examined; and that would be involved in deciding as to the time necessarily employed in making the examination. The examinátion •extends to the office of the treasurer as well as to that of the auditor, and the treasurer is confessedly denied participation in this decision. Having in view the object of the statute, it seems natural that both :should be denied such participation and for the same reason.

Our conclusion is that it is the duty of the probate .judge, upon application of the accountants, to determine the number of days necessary to the examination, and to certify his conclusion to the auditor, whose imperative duty it will then be to draw warrants for the time certified at the rate fixed by the statute. This view is as consistent as any other with the provision quoted. It is entirely consistent with the general terms of the statute, and is promotive of the purposes for which the examination is had. It is in accord with the general provisións of the law by which the court making an appointment for public service fixes the compensation of those appointed. It is harmonious with the provisions which define the duties of the treasurer with respect to the payment of warrants drawn by the auditor.

Judgments reversed.  