Page:North Dakota Reports (vol. 3).pdf/284

 Mandamus is proper remedy to compel auditor to sign and deliver a warrant. Merrill on Mandamus § § 126, 121; Lachauce v. Auditor General, 43 N.W. Rep. 1005; State v. Tarpen, Auditor, 1 N. E. Rep. 209. In issuing warrants the auditor acts ministerially. State v. Ames, 18 N. W. Rep. 277. The petition alleges that the cells and corridor were delivered to Eddy County. The contract was one the county had power to make, consequently even if the contract was not properly made, yet by user and acceptance the informal contract might be ratified. Bank v. School Dist., 1 N. D. 479; Bank v. School Dist. 6 Dak. 248, 19 Am. and Eng. Enc. Law 47, 15 Id. 1102.

J. F. Keime, for respondent.

The auditor must certify that the warrant has been issued “pursuant to law” and that “it is within the debt limit.”. The making of this certificate involves a judicial discretion. Section 187 Const. Debates Const. Con. 439-440. Where the act sought to be coerced by mandamus involves an examination, the exercise of judgment or discretion mandamus will not lie. Peo. v. Supervisors, 12 Johns. 414; Peo. v. Auditor, 10 Mich. 307; Tilden v. Supervisors, 41 Cal. 68; State v. Judge, 53 N. W. Rep. 433, 3 N. D. 43; High. Ex. Leg. Rem. 45 to 47, 24, 80; Merrill on Mandamus 112. There could be no ratification in this case § 3972 Comp. Laws. Capital Bank v. School Dist. 1 N. D. 486, 494. A public corporation cannot be estopped by the void acts of its agents. Bigelow on Estoppel 530; McPherson v. Foster, 43 Ia. 48; Schaffer v. Bonham, 95 Ill. 368; Ottawa v. Perkins, 94 U. S. 260.

, J. The appeal is from an order denying relator’s application for a writ of mandamus to compel defendant, as auditor of Eddy County, to attest and certify a county warrant issued by the board of county commissioners, and signed by the chairman thereof. The relator did not secure, in the first instance, an alternative writ, but applied on notice for a permanent writ. The better and more regular practice is to obtain the alternative writ on an ex parte application. The alternative writ constitutes