20 Barb. 294 | N.Y. Sup. Ct. | 1855
Assuming, without deciding, that no discretion is vested in the board of supervisors in relation to the account of the plaintiff, and that a clear legal duty rests upon them to cause to be levied, collected and paid, the whole amount of the account as a county charge, which they refuse to perform, I am satisfied that the law does not allowr to the plaintiff a remedy by action ; and that his only remedy is by an application to the court, for a mandamus, to compel the supervisors to perform that duty. The board of supervisors are not a corporation; and as such a board, and apart from the
In The People v. The Supervisors of Columbia, (10 Wend. 363,) it was held that a mandamus against the supervisors was the proper remedy when a duty rested upon those officers to cause to be levied, and collected, a certain sum, made a county charge, in‘like manner as other charges upon the county were required to be levied and collected; and that an action against the county would not lie. Chief Justice Savage, in delivering
The principle that a mandamus is the proper remedy in such cases, is recognized and applied in numerous authorities. (Bright v. Supervisors of Chenango, 18 John. 242. Johnston v. Supervisors of Herkimer, 19 id. 272. The People v. Supervisors of Cayuga, 2 Cowen, 580. The People v. Supervisors of St. Lawrence, 5 id.292. The People v. Supervisors of Dutchess, 9 Wend. 508. The People v. Supervisors of Ulster, 3 Barb. S. C. R. 332. The People v. Edmonds, 15 id. 540.) All these and other similar authorities impliedly hold that an action will not lie; as the principle is clear and undisputed that a mandamus will not be issued when there is an adequate remedy by action.
In The People v. The Supervisors of Fulton, (14 Barb. 52,) the doctrine is advanced, although it was not necessary to the decision of the case, in the view taken by the court of another point, that if the board of supervisors “ has neglected or refused to perform a legal duty enjoined upon them, and which they were bound to discharge, an action will lie against themand therefore a mandamus cannot be granted. These cases are referred to in support of the doctrine: Ex parte Lynch, (2 Hill, 45.) The People v. The Mayor of New York, (25 Wend. 680.) Ex parte The Fireman’s Ins. Co., (6 Hill, 243.) In the first case a mandamus against officers acting as supervisors of New York was refused, on the ground that the relator had an ample remedy by action against The Corporation of New York; inasmuch as the statute allowed him a certain sum as his salary, to be paid by the common council of the city, out of the city treasury. The next case is of a like character. And
There must be judgment in favor of the defendants.
Selden, Johnson and T. R. Strong, Justices,]