STATE EX REL. JOHN R. WALKER, JOHN R. MIOT, JOHN C. JONES, R. A. CONKLING AND J. F. BELL AS COUNTY COMMISSIONERS OF BREVARD COUNTY, FLORIDA, PLAINTIFFS IN ERROR,

v.

A. A. STEWART, DEFENDANT IN ERROR

Hocker, J.

(After stating the faots.)

We are of opinion that the substance and effect of the resolution passed by the Board of County Commissioners on the 2nd of November, 1903, when its terms were accepted and acted on by the Indian River State Bank of Titusville, amounted to an agreement or attempted contract to pay interest to the bank for the use of the money of the bank in cashing county warrants, when the county treasurer had no funds to discharge them. This court held in the case of the National Bank of Jacksonville v. Duval County, 45 Fla. 496, 34 South. Rep. 894, that in the absence of statutory authority the County Commissioners had no such power. It said: “While the contract made with the plaintiff may have been wise from a business point of view, tending as it did to sustain the credit of the county, we have been unable to find a statute granting the power to make it, or granting any other power from which we can clearly imply the one here attempted to be exercised.” It is contended, however, that the legislature by the proviso in the third section of Chapter 5183, laws of" 1903, recognized the power to pay interest on warrants before the presentation to the treasurer, by saying that “nothing in this act shall be construed as requiring counties to pay interest on warrants after presentation to the treasurer.” There is nothing in any section of the act that grants a power to pay interest on warrants under anv circumstances, nor is there any grant of authority from which such may be clearly implied. The purpose of the proviso seems to be to preclude the notion that interest should be paid under any circumstances, for if interest is not to be paid after presentation of a warrant to the treasurer, no reason can be conceived why it should be done before presentation. If the construction contended for were the proper one, then a party holding a warrant could delay the presentation and perhaps under a favorable contract with a county, bankrupt it with accumulated interest. This would reduce the statute to an absurdity.

It is further contended that the clerk is a mere ministerial officer, and has no power to refuse to comply with an order of the Board of County Commissioners directing him to sign and seal a warrant, and the case of State ex rel. Fleming, Governor v. Crawford, 28 Fla. 441, 10 South. Rep. 118, is cited in support of this contention; but that case is not analogous to the instant one. In that case this court held “that neither the Secretary of State nor the Supreme Court of Florida has power to pass upon the legality of an election of a United States Senator by the legislature, or of the appointment of a Senator by the Executive of the State,” and consequently that when the Governor had appointed a senator, he had a right to require the Secretary of State to give effect to his act by issuing a commission to the appointee, leaving the question of the propriety of his act to be determined by the Senate of the United States. In the instant case the Circuit Court, as well as this court, has authority to pass upon the legality of the action of the county commissioners, and if that action is found to be without authority the clerk will not by mandamus be compelled to aid them in doing an illegal act. Relators must show a clear legal right to entitle them to a writ of mandamus. 13 Ency. Pl. & Pr., p. 496; 19 Amer. & Eng. Ency. Law (2nd ed.) 725-730; Johns v. County Commissioners of Orange County, 28 Fla. 626, text 630, 10 South. Rep. 96; State ex rel. Edwards v. County Commissioners of Sumter County, 22 Fla. 1; State ex rel. Norman v. D’Alemberte, 30 Fla. 545, 11 South. Rep. 905.

The judgment of the Circuit Court is affirmed.

Taylor and Cockrell, JJ., concur. Whitfield, C. J., and Carter and Shackleford, JJ., concur in the opinion.