The opinion
Sharpstein, J. :
I dissent. In my opinion, this application cannot be granted consistently with the law relating to mandamus.
1. If the act is not one which the law specially enjoins the performance of by the Treasurer, as a duty resulting from his office, the writ ought not to issue. (Code Civ. Proc. § 1085.)
It is conceded that an appeal is pending in this Court from the judgment which the Board of Supervisors ordered to be paid, and which the Treasurer refuses to pay because of the pendency of such appeal. One effect of an appeal is to stay all further proceedings upon the judgment appealed from until the determination of the appeal. If we accord to this appeal that effect, it operated ipso facto as a stay from the time it was perfected. That such was, and is, the effect of it, seems too plain for argument. But it is contended, however, that the appeal was improperly taken, because the Board of Supervisors did not direct it to be taken, but, on the contrary, ordered the judgment to be paid before the appeal was taken. Was that a proper matter for the Treasurer to determine ? If, instead of an appeal being taken, an injunction which forbade his paying the judgment had been served upon him, no one would claim that he might disregard that on the ground that the case was not one in which an injunction could properly issue. Nor would a court compel him by mandamus to pay the judgment, after being so enjoined, although it was apparent that the injunction was improperly granted. If the Treasurer himself was not authorized to determine the validity of the appeal, the Court, in this, proceeding, will not determine it. What he was not fully authorized and bound to do without the command of this Court, this Court will not command him by mandamus to do. If there be any doubt as to the duty of an officer to act in a given case, courts will not by mandamus compel him to act. Before we can grant the application in this case, we must determine that the appeal was improperly taken, and that, too, in a proceeding to which the officer taking the appeal is not a party. It does not seem to me that an appeal to this Court can be virtually dismissed in a case where its validity is only collaterally involved. I think it can only be done in a direct proceeding, in *330 stituted for that purpose. To grant the writ prayed in this case, is to decide that the Treasurer was bound to determine whether the law officer of the city, whose chief duty it is to act as the legal adviser of the other officers, transcended his authority in taking an appeal to this Court. If it was not the duty of the Treasurer to determine, that question, then there is no ground for the issuance of a writ of mandamus to him, in this case.
2. It does not appear in this case that the plaintiff has not a plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ. Proc. 1086.) If the appeal pending in this Court is here under circumstances which will justify this Court in disregarding it to the extent demanded by the plaintiff, then this Court would, upon a single motion, dismiss it. Can any remedy more plain, speedy, and adequate than that be devised? And that, too, would be in the ordinary course of law. It cannot reasonably be supposed that this Court would hesitate to dismiss an appeal taken without authority. If the City and County Attorney had no authority to take this appeal, the Court, upon being satisfied that he had not, would promptly dismiss it. And the want of authority to take the appeal is the only ground upon which it is even suggested that the Court can grant this application. Then why not attack the validity of the appeal lirectly instead of collaterally? Why proceed against an officer who had no hand in that' matter, instead of against the one who is wholly responsible for the appeal ?
To accomplish, indirectly, by mandamus, what can be accomplished directly by a simple motion is, as I view it, to reject a plain remedy and resort to a doubtful one. This the statute does not sanction. “ The existence or non-existence of an adequate and specific remedy at law in the ordinary forms of procedure is, therefore, one of the first questions to be determined in all applications for the writ of mandamus, and whenever it is found that such remedy exists, and that it is open to the party aggrieved, the courts uniformly refuse to interfere, by the exercise of their extraordinary jurisdiction.” (High’s Extraordinary ¡Remedies, 17.)
I am not satisfied that it was the duty of the Treasurer to disregard the stay which the appeal from the judgment created, and I am perfectly satisfied that the plaintiff, upon its own *331 theory, has a plain, speedy and adequate remedy, by a motion to dismiss the appeal, which constitutes the only obstacle to the payment of the judgment. Therefore, I think that the application for the writ of mandamus in this case should be denied.
McKee, J., concurred in the dissenting opinion of Mr. Justice Shap.pstein,