33 Barb. 603 | N.Y. Sup. Ct. | 1861
By the Court,
The questions that arise in the • discussion of this case require the examination, to a certain extent, of the powers and duties of the boards of supervisors of the several counties, who, as organized local forums, are called upon to perform various duties, largely affecting public and private interests, and are clothed by statute with powers, legislative, judicial, and ministerial. The amount of claim, involved in this case, is quite inconsiderable, but the proper settlement of the legal questions involves very important public and. private interests. The clerk of the
There are several reasons why this judgment cannot stand; either one of which would be sufficient to reverse the judgment, but as these reasons have been severally examined, we will present them in their order.
First. It will be observed, that the statute which provides compensation to printers and publishers of newspapers for services similar to those which the plaintiff performed in this case, does not, as was supposed, fix any precise amount to be paid therefor. It fixes a limit, beyond which, compensation shall not be allowed. (See 3 R. S. 929, § 45, 5th ed.) The aUewari§g is, “ not more than fifty cents per folio for the first insertion, and twenty cents per folio for each subsequent insertion^"” pc. This language is similar to that of the section of "tiife* • statute providing compensation to jurors for
Second. The plaintiff could not sustain this action against the “ county,” as a party, even if he had an absolute demand against the county, not subject to the discretion of the board of supervisors. By 1 R. S. 5th ed. 846, § 1, each county, as a body corporate, has capacity to sue and be sued, but only in the manner prescribed by law. (See also 20 Barb. 294; 2 Kernan, 52; 23 Barb. 338.) By § 2 of the same statute, “ No county shall possess or exercise any corporate powers, except such as are enumerated in this chapter, (ch. 12,) or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given.” Among the enumerated powers is not to be found that of bringing or defending actions relating to demands due to or from the county, with individuals; but on the contrary, as a complete prohibition and negative to the exercise of such power, section 3 of the same statute declares, All acts and proceedings by or against a county shall be in the name of the board of supervisors of such county,” &c.; and by section 4 of the same statute, “ The powers of a county, as a body politic, can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted.” (See also 5 Denio, 517; 26 Wend. 70.) There is still another statute (3 R. S. 5th ed. 774, § 108) by which it is again provided as follows: “ Actions against counties, in the cases in which they are allowed by law, shall be brought against the board of supervisors thereof &c. (See also 2 Kernan, 52; 2 Sandf. S. C. Rep. 470.) The plaintiff’s action is brought directly against the county”- by its corporate name. Clearly, his action is improperly brought. The authorities above cited establish the law to be, that the corporate powers of a county are not only limited in extent, but .are confined and restricted
Third. Another reason why the plaintiff ought not to recover this demand is, that he selected a forum not only duly authorized bylaw to “ audit, settle and allow” his account, but a forum which, having jurisdiction of the subject matter thereof, did adjudicate and pass thereon, and gave him the result' of their judgment, which he accepted. If it was a case where the board of supervisors had no discretion to disallow; as, where the compensation was a fixed, vested, legal right, and where they could not, therefore, act judicially, or with discretion, his remedy was by mandamus to compel them to give him his fixed legal rights. Hot only by a well established rule of law can he not split one entire demand, all due, and prosecute in one court, or body having jurisdiction of the matter, and recover a part, and then bring another action in another court to recover the balance; hut the errors of the one body should not and cannot thus be corrected by the other ; to say nothing of the legal estoppel to him, of having accepted (or having taken) the amount of the first adjudication, or of the effect of a former proceeding, in bar of his recovery in the latter.
Fourth. The plaintiff could not bring an action at law upon such a demand, had the supervisors refused to allow him any thing thereon. His only remedy was by mandamus. The recent cases upon this point are all in harmony. Since the case of Brady v. The Supervisors of New York, reported in 2 Sand. S. C. Rep. 459, reviewed and affirmed in the court of appeals, (6 Seld. 260,) this point may be regarded as settled. The principles involved in this case are decided in that. At all events, I am not able to distinguish them. In a still later case, Boyce v. The Board of Supervisors of Cayuga Co.
Rosekrans, Potter and Bockes, Justices.]
Judgment reversed.