Several courts of appeals have found, in cases similar to the instant case, that a civil suit is an inadequate remedy at law to compel a county to pay a claim for money. Guerra v. Weatherly, 291 S.W.2d 493, 496 (Tex.Civ.App. — Waco 1956, no writ); Wichita County v. Griffin, 284 S.W.2d 253, 256 (Tex.Civ.App. — Fort Worth 1955, writ ref'd n.r.e.); Chrestman v. Tompkins, supra; Ham v. Garvey, 155 S.W.2d 976 (Tex.Civ.App. — San Antonio 1941, no writ); Hood v. Cain, 32 S.W.2d 485 (Tex.Civ.App. — El Paso 1930, writ refused). Respondents cite two cases from the courts of appeals in support of their claim that a civil suit is an adequate remedy under the instant circumstances.
The auditor, of course, may neither arbitrarily nor in contravention of law withhold approval of payment. See Guerra v. Weatherly, 291 S.W.2d 493 (Tex.Civ.App. — Waco 1956, no writ); Ham v. Garvey, 155 S.W.2d 976 (Tex.Civ.App. — San. Antonio 1941, no writ); Hood v. Cain, 32 S.W.2d 485 (Tex.Civ.App. — Amarillo 1930, writ ref'd). These cases stand for the proposition that when plaintiff proves that he is entitled to payment as a matter of law, and, when there is no legal justification for the auditor withholding approval of the claim or payment thereof, mandamus will lie. This is true because the refusal of the auditor in these instances would be an abuse of his discretion.
However, appellee asserts that the remedy of mandamus was and is a proper remedy under the facts in this case. See Martin v. Sheppard, 129 Tex. 110, 102 S.W.2d 1036 (1937); Simpson v. Williams Rural High School District, 153 S.W.2d 852 (Tex.Civ.App.-Amarillo 1941, writ ref'd); Hood County Judge v. Cain, 32 S.W.2d 485 (Tex.Civ.App.-Amarillo 1930, writ ref'd). In some jurisdictions mandamus has been granted to compel the payment of salary though title to the office was incidentally involved.