Field, C. J. and Cope, J. concurring.
Application for mandamus to issue certain bonds.
By the Act of 1860, (Statutes, 134) bonds of the county of Butte were to be issued by the Supervisors in a certain contingency, defined in the act, to the Railroad Company, and this record involves the question whether, upon the facts stated in the petition and found by the Court, this contingency has happened. The following provision in section two of the Act bears upon the ques*675tion: “ Whenever an estimate of expenditures shall be presented to said Board at any regular session by said Company, and it shall appear to their satisfaction that an amount not less than $6,000 of expenditures has been made, (exclusive of any cost of right of way and salary of officers) either in the construction of, or obtaining materials for, said road, and it shall likewise appear to their satisfaction that the amount of the first mortgage bonds do not exceed $850,000, and that there are not other liens or incumbrances or right of lien thereon, existing prior to the date of said first mortgage bonds, it shall in that event, and not otherwise, be the duty of said Board of Supervisors to issue and cause to be executed the bonds of said county for one-third of the estimate so made; and when said Company shall deliver to said Board an equal amount of its said first mortgage bonds, to deliver said county bonds at their par value to said Company, and continuously thereafter, upon estimates so made, in the ratio of one to three, until the whole $200,000 shall have been issued and expended.”
The estimates, it seems, were made, and proof of expenditures, etc. But the Board of Supervisors refuse to issue bonds for more than $10,000, on the ground that the actual value of the work done was not the amount expended, but a less sum, and they construed the obligation to be to furnish bonds in an amount proportioned only to the actual value of the work, etc., etc. We think this was not the true standard. The basis is the actual expenditure. This prima facie, connected with the proof of the other facts, constitutes the claim upon the county for the bonds. Any other basis, besides being uncertain, and leading to embarrassing inquiries, is unwarranted by the express terms and evident spirit of the Act. If the expenditure was not really made, or fraud had been committed in the contracts, this might be a good defense to the county. But we do not understand this ground to be taken. The claim of the county is made to rest solely upon the construction before noticed. We think it inadmissible.
The point as to the mandamus not being the proper remedy is not sustained. We think the Board of Supervisors act ministerially in the issuance of bonds. (See McCauley v. Brooks, 16 Cal.)
It seems, however, that a technical difficulty is interposed by the *676answer of the defendants, which is fatal to the proceeding in its present form. It is that this proceeding was begun before ten days had elapsed from the decision of the Board of Supervisors— a remonstrance having been made by a tax-payer, as provided by the second section of the act. The issuance of the bonds in such cases is directed to be suspended for ten days, to allow a contest in the District Court. We think that the effect of this was to authorize, indeed, to require the Board to refuse to issue the bonds for this period, and therefore it was not in default for this failure, and the plaintiff had no right of action in this or -any other form to compel the performance of the alleged duty until the expiration of this period. *
We agree with the learned Judge below, that the proceeding contemplated in the District Court by the tax-payer was a proceeding by certiorari in the form and according to the course of that writ; and that the issuance of the writ is necessary to stay the proceedings beyond the ten days, though probably no formal order of injunction be necessary.
We affirm the order of dismissal on the technical ground mentioned ; but the effect of this affirmance is' to permit the plaintiff to proceed again without prejudice from the judgment, if it shall be so advised.