Wells v. Bruner , 1918 Tex. App. LEXIS 611 ( 1918 )

The petition seeks to compel the signing of a warrant for a school teacher's salary alleged to have been earned under a contract duly approved and authorized by law to be made, and the appellants urge that the demurrer should have been sustained to the petition for the reason that mandamus does not lie to control the discretion ot the trustees in the allowance of the claim or the issuance of a warrant therefor in the premises. It is admitted by appellants that if the claim for salary had been reduced to a judgment, and so alleged, in a court of proper jurisdiction, then clearly the claim would be such a definitely ascertained demand as that the issuance of a warrant by the trustees for the same would be regarded as merely a ministerial act or duty and mandamus would issue to compel the performance of the legal and official duty. Harkness v. Hutcherson et al., 90 Tex. 383, 38 S.W. 1120. But, as insisted, until the claim has been determined as required by law or by judgment of a court, there exists and is involved the exercise of judgment or discretion in the allowance at all of the claim on the part of the trustees, and consequently mandamus will not be awarded to compel the payment of the claim. It is believed that the contention should be sustained. 26 Cyc. 286; 18 R.C.L. § 38; Id. § 145; Arberry v. Beavers, 6 Tex. 457, 55 Am.Dec. 791; Jones v. Dodd, 192 S.W. 1134. The allegation that the trustees refused to sign the warrant and allow its payment is in effect a denial by them of the claim.

The writer, though, thinks the petition good as against a demurrer. A mandamus may issue to correct an abuse of discretion if the case is otherwise proper. McKillop v. Board of Supervisors, 116 Mich. 614;74 N.W. 1050; Wood v. Strother, 76 Cal. 545, 18 P. 766, 9 Am. St. Rep. 249.

The judgment is reversed, and judgment is here entered dismissing the suit, with costs of the trial court and of this court taxed against appellee.