One of the orders issued by the Commissioners Court of Presidio County was dated in May, 1890, and the other in December, 1890. When the doubts of the treasurer in regard to the "legality or propriety" of the warrants arose is not disclosed by the record, but the statute requires him, upon such doubts arising, to report the matter to the Commissioners Court, and the presumption would be that he performed his duty, and that at least one of the orders was the result of his report. The record does not show that the presentation made of the claim in 1892 was the first time demand had been made for payment. Even if the orders were the cause, rather than the result, of the doubts in the mind of the treasurer, still, under the statute by which this decision is shaped and controlled, the exercise of discretion is vested in the treasurer, and the law, in the absence of proof, will presume a full compliance with his duty. The statute does not limit the discretion to a reasonable doubt, but says, if he "shall have any doubt" he shall not pay the warrants. The treasurer swears positively that he had doubts as to the legality and propriety of the warrants, and refused to pay the same. This we believe he had a right to do, until further instructed by the Commissioners Court. The Commissioners Court may have acted illegally in issuing the two orders forbidding payment of the warrants, yet the orders may have caused the treasurer to investigate the matter, and thus raised the doubts in his mind, and he might well have said that he would have paid the warrants but for the order. In a number of States it has been held, that when the power of auditing claims has been placed with a certain board or court, that when so audited and warrants issued, the writ of mandamus to the county treasurer is permissible to compel payment. Ray v. Wilson, 29 Fla. 342; Martin v. Supervisors of Greene Co.,29 N.Y. 647; Brady v. City, 10 N.Y. 260; People v. Edmonds, 19 Barb., 468; People v. Haws, 21 How. Pr., 178; Brown v. Crego,32 Iowa 498; Meyer v. Porter, 65 Cal. 67; Sessions Leary v. Boykins, 78 Ala. 328; State v. Gandy, 12 Neb. 232.
These cases, however, all seem to have been rendered in the absence of statutes placing any discretion in the payment of claims in the power of the treasurer. In Mississippi, a decision permitting mandamus to a county treasurer is based on the ground that "the treasurer *Page 18 has no power to suspend or refuse payment of warrants properly drawn on him by the clerk in obedience to the board of supervisors, unless it is expressly given him by statute." Hendricks v. Johnson, 45 Miss. 644.
In Indiana it has been held, "a fiscal officer can not be compelled by mandate to pay a claim where any duty is devolved on him except the mere ministerial act of making payment." The State v. Snodgrass, 98 Ind. 550.
We have seen no authority that attacks this position, unless the case of Johnson v. Campbell, 39 Tex. 83, may be held to do so. While holding that the treasurer would have authority to report to the County Court in "ordinary cases," that opinion held that vouchers signed by the "lieutenant of State police in charge," and approved by James Davidson, "adjutant general and chief of State police," were to be paid by the treasurer without discretion. The opinion seems to go even further, and deny the exercise of any discretion except to report the matter to the Commissioners Court; but we hold that the opinion is directly in the teeth of the statute, and we can not follow it until there is an authoritative decision of our Supreme Court sustaining it. It is contended, that even if the alternative writ was not properly granted, if it was shown upon the trial that appellant had no reason for his doubts as to the legality or propriety of paying the warrants, the case was in court and jurisdiction had attached, and under the facts the peremptory writ of mandamus should issue. The reason given for this position is, that if the treasurer had been sued for the nonpayment of the warrants and judgment had been obtained, the court could issue a mandamus compelling the payment of its judgment. We are of the opinion that such a suit could not be maintained in the first instance against a county treasurer; and in the next, if such a suit would lie, the resort to the writ of mandamus was unjustifiable, because mandamus will only lie in the absence of other adequate legal remedy.
The right to refuse payment is given to the county treasurer whenever doubts as to the legality or propriety of the order or warrant arise in his mind, and this discretion as to payment is not taken away until the Commissioners Court in response to his doubts again orders payment, or the validity of the debt is established by some other court of competent jurisdiction. The motion for rehearing is overruled.
Overruled. *Page 19