36 A.D. 321 | N.Y. App. Div. | 1899
The proceeding which furnishes the basis of this appeal was instituted by the affidavit of thirty-three freeholders of the town of Hempstead, which was presented to a justice of - the Supreme.Court and prayed for an investigation of the financial affairs of the town, the accounts of the officers and of each and all of the bills. and
Thereupon an order was made by the justice appointing experts, under section 3 of the General Municipal Law, and directing that a hearing be had before them in the town hall in the village of Hempstead on the 8th day of February, 1897. Upon such'hearing the experts proceeded to take proof and examine the bills and charges rendered to and audited by the town board of 1896, the members of which were made parties to the proceeding, and also to investigate in like manner the audits of. former-boards, the charges of town officers.and other persons, extending as far back as 1882 and perhaps beyond. In several instances the experts found illegal charges audited by former town boards and improperly paid to the officers and individuals named in their report. In these cases report was made in detail as to the character of "the charges, and the court has restrained payment in each instance. ' As to several of these
We are, therefore, to consider, in the first instance, the purpose and scope of the act under which the proceeding is instituted, and determine, if we may, how far and upon whom it may be made to operate in the present proceeding. The clause applicable to the present case is found in section 3 of the act, and reads as follows:
“ If twenty-five freeholders in any town or village shall present to a justice of the Supreme Court of the judicial district in which such town or village is situated, an affidavit, stating that they are freeholders and have paid taxes on real property within such town or village within one year, that they have reason to believe that thfii moneys of such town or village are being unlawfully or corruptly expended, and the grounds of their belief, such justice, upon ten days’ notice to the supervisor, and the officers of the town disbursing the funds to which such moneys belong,. or the trustees and treasurer of the village, shall make a summary investigation into the financial affairs of such town or village, and the accounts of such officers, and, in his discretion, may appoint experts to make such investigation, and may cause the result thereof to be published in such manner as he may deem proper. . .
“ The costs incurred in such investigation shall be taxed by the justice, and paid, upon his order, by the officers whose expenditures are investigated, if the facts in such affidavit be substantially proved, and otherwise, by the freeholders making such affidavit. If such justice shall be satisfied that any of the moneys of such town or village are being unlawfully or corruptly expended, or are being appropriated for purposes to which they are not properly applicable, or are improvidently squandered or wasted, he shall forthwith grant an order restraining such unlawful or corrupt expenditure, or" such Other improper use of such moneys.” (Laws of 1892,' chap. 685, §3.) * '
It seems clear, from the provisions of the act, that the basis of the
It is also proper, in order that it may appear what has been the practice and custom of the town in auditing town charges, and In order to determine the existing financial condition; to investigate the course of procedure in respect of the .expenditure of public moneys, so that waste may be prevented, if there has been waste,
It is not appropriate to the present discussion that we should refer to each item or individual, where it is made to- appear that, illegal charges have been audited, allowed and paid -by former boards. . It is sufficient now to say in respect of such illegal charges-that while the present statute is inadequate to correct such illegal action, and to restore the moneys thus appropriated, yet in every, such case, where the Statute of Limitations has not run against the claim,- a right of action exists to recover the moneys thus illegally appropriated and paid. In this regard we do not deem it necessary to call more particular, attention to the matter, except in the case of Brill, the town clerk for the years that he was in office. It appears from the report of the experts that Brill charged, and was allowed and paid, at the rate of two dollars per day for his services as custo- ■ dian of the town records; and this charge was as well for Sundays and holidays as for other days of the week. We agree with the learned experts that this item constituted an illegal charge, and was beyond the authority of the board to allow. A public officer is entitled to no compensation for the performance of a public service, unless the law attaches it to liis office. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) A town clerk is entitled to certain, fees
'So"far as the town clerk is required' to attend upon the town, board of his town (§ 3, chap. 344, Laws of 1893), he is entitled to receive the same compensation as any other member of the towh board, in. addition to his other compensation allowed by law. It is quite clear that he would not be authorized to charge for more than one day for a meeting of the town board, where the duties to be performed for that day related to a particular function. But in those instances where the town board, acting through ' different members; have meetings, as there would be different members of each board, it would be an entirely different meeting, and for each, of such meetings We are of opinion that he became entitled to-charge per diem compensation for each board. But in those cases-where the board is composed of thp same individuals performing' service for the town, although under different names, -we think there can be but one per diem compensation for such service, and to the extent that the town clerk or. other members of such board have charged and received compensation for separate meetings of thq same persons under different. names, such charge is not authorized by law, and is, therefore, illegal.
"We shall not attempt in this opinion-to point out each particular instance where such illegal charge has been-made. It is sufficient that wé now state what is the legal rule covering such a case, and the application can be easily made to those conditions which fall within it. While it is true that this statute cannot operate in restraint of illegal .payments made by former boards, yet so far as the report and the order made by the learned court in respect thereto are concerned, the injunction in form against such payments does not furnish any basis of legal error. No individual-is made to suffer therefrom in a legal sense, and even though the order assumes to restrain such acts, yet it is harmless in such regard, as no steps can be taken thereunder which at all affect the rights or status of the individual in res]3ect thereto. It is not made evidence. u]3on which to base an action for moneys received, as in order to sustain such action common-law proof would be required,, and this report ’ and order cannot be evidence for such purpose. It does, however, as we have already observed, point out to the town its financial con
We come’now to consider the specific acts upon which the statute-may operate, and upon which rests the legal basis for the assessment of the costs of the proceeding. So far as the bills of the justices of the peace are concerned, the experts have rejected from the bills presented and audited by the board, the following items: For orders-made upon the trial at twenty-five cents each; for arraignments at a dollar each; for adjournments at a dollar each; for hearings-when apparently no hearing was had ; for a record of conviction; for a retainer; for trials when apparently no trial was had; for printing blanks and for blanks; for attendance at board meetings on the same day as other board meetings for which charges are made for per diem work on same days as meetings of the town board; for sentences when the defendant was discharged; for commitments-when the defendant was not committed; for recalls; for proceedings to kill dogs; for expenses to Albany as committee on legislation ; for cash for telegrams; for committee work; for white paper, yellow paper and criminal dockets, and for clerical proceedings.
So far as the orders are concerned, at twenty-five cents each, which seem to make up the largest item, it appears that in. each instance the charge was made by the justice when an adjournment was had and when there was a final determination. The act fixing' the fees of justices of the peace in civil and criminal cases is found in chapter 188 of the Laws of 1884. By its provisions are found in the first instance, in specific terms, the fees for each act which he is required to perform upon a civil or criminal proceeding. After specifying in detail these specific charges, there follows a general provision as follows: “ For furnishing copies of papers in any proceeding, at the rate of five cents per folio of one hundred words; for each order in writing or certificate required hy law, twenty-five cents; drawing an undertaking of bail, twenty-five cents; taking an acknowledgment, twenty-five cents.” It would seem from a reading of this provision that in the first instance the fees of the justice for every act which he is required to perform from the issuing of a warrant to the discharge or conviction of the offender, are made certain by specific provision. The clause above quoted seems to us to
The statute authorizes a charge of one dollar for each day’s necessary attendance, upon the hearing or examination’of the accused. ,So far as this item is concerned We are of opinion that the magistrate became entitled to charge one dollar for each. time that he necessarily attended; thus, at the time when the arraignment of the defendant was had, if there was a hearing, the magistrate was entitled to charge one dollar therefor. If the ease was necessarily .adjourned, and he again attended, he became entitled to his statutory fees for such second attendance, if necessary; and it would matter not whether evidence was taken or not, the fee is for the ' necessary attendance, and the magistrate is entitled to charge therefor. To the extent, therefore, that the report of the experts and ■the order of the court based thereon rejected items of this character, their determination in this respect may not be upheld.
It cannot be expected in a written opinion that each particular item shall be pointed out from this voluminous record wherein this fule has been violated. Nor-do we determine that in those instances where the experts have reported against the charge for hearings when apparently no hearing was had, or trials when no trial was had, or examinations when no examination was had, that thereby •the report is to be rejected and the order is to be reversed; or, in other words, when the service for which the charge is made was •pot rendered, that the finding of the experts or the order of the
As to the item for adjournments only, a charge of twenty-five cents is authorized, and wherever such charge has been made in excess of such sum, it constitutes an illegal charge. .
So far as the items for a retainer, the printing of blanks, or foT blanks 'and for criminal dockets are concerned, there exists no authority in law for such charges, and such items were properly rejected. A justice cannot be retained, that is, legally, and for his blanks and books the fees of his office' are presumed to cover such expense^ and they are a personal charge to the magistrate and not to the town.
So far as the items for attendance upon board meetings are concerned, the same rule must be held to apply as we have already assei’ted as applicable to the town clerk under similar circumstances,
So far as the items charged for services upon the legislative committee and expenses connected therewith are concerned, no basis in law exists'therefor, and they seem to have been finally properly rejected by the board of auditors.
By section 125 of the County Law (Chap. 686, Laws of 1892), authority is conferred upon justices of the peace to take cognizance of a complaint that a dog has made an attack upon any person peaceably traveling on the highway, or' his horse or team, and if upon inquiry the" justice is satisfied of the truth of the complaint and that such dog is a dangerous animal, lie is required to make an order directing the owner or possessor of such dog to kill him immediately. Article 9, section 1, of the ordinances of the town of Hemp-stead provides that it shall be unlawful for any dog or dogs to be at
In the bills of the constables and deputy sheriffs, the experts reported to reject items for attending court when no- jury was summoned; for taking a prisoner before a¡ justice; for proceedings to kill dogs; for duplicate charges for notifying complainants; -charges for mileage for conveying prisoners to the jail;" for executing extra mittimuses.
So far as these items contain duplicate charges, it is not contended that they were not properly rejected' by the experts.' So" far "as the items for attendance upon court when "no" jury was" summoned, at the rate of fifty cents for each attendance, are concerned, no authority exists in "law for such charge. The provision of the statute is
So far as the item for taking prisoners before a justice is concerned, no charge is permitted by the statute. A constable is only authorized to charge for executing a warrant seventy-five cents, and for the custody of the defendant during the pendency of the proceeding, when he is directed by the justice to retain the person arrested in custody, one dollar per day: No other charge in this regard is authorized. (Chap. 692, Laws of 1866, as amd. by chap. 89, Laws of 1877.) This charge was, therefore, properly rejected.
So far as the proceeding to kill dogs is concerned, if it be had under section 125 of the County Law, no charge is authorized to be. made against the town, as there is no provision of law authorizing a fee for such service under this statute. Whatever fee he may be entitled to for such service is a county and not a town charge. (County Law, § 230, súbd. 6.) If the proceeding was had under the ordinance of the town of Hempstead, then the constable became entitled to charge two dollars for killing and burying each dog. (§ 2, art. 9 of the Ordinances.) We are not able to determine either from the report of the experts or from the evidence in the case whether these proceedings to kill dogs were taken under the
The statute allows mileage for every mile traveled • going and coming, at a given rate, when the officer is engaged upon a service, which- authorizes him to make the charge. The statute seeks to’ make compensation for' actual and not constructive miles traveled,, and is for the indemnity of the officer for expenses necessarily incurred in traversing the distance he is required to go. Under, such authority it is easy to see that he may not charge for more, miles than he has .traveled, even- though he have at the time in his custody more 'than one person. It is monstrous to assert that when the officer takes into custody more than one person for the purpose, of delivering them either before the magistrate, or from the magistrate’s office to the place of custody, he may charge for' having traveled over the same distance for each person he so takes, when in fact he makes but one trip. Such a charge is a fraud upon its face, as it amounts to a receipt of money for miles alleged to have been .traveled which have not in fact been traveled. The officer is no more authorized to charge therefor than he is authorized to make a. fictitious charge for any other service which he never rendered. So far, therefore, as these bills involved charges for mileage under such circumstances, the report of the experts and the order based thereon are to be sustained.. -
The charge for burying the dead bodies of animals was a proper charge^ against the ■ town, when done pursuant to the directions of the.local board of health. (Laws- of 1893, chap. 66l, § 30.) The record, in this case shows that animals were buried pursuant to the direction of the board of health. It is not contended but that the
So far as the items for printing bills are concerned, it is not entirely clear from what the items for printing were made up. The evidence tends to establish that in part at least they consisted of blanks and papers used by the justices in criminal proceedings. We are cited to no authority in any law which constitutes such matter a legal charge against the town. On the contrary, as we have before observed, such stationery, blanks, etc., as the justices require are to be furnished by them, and their fees are expected to pay therefor. It may be — indeed we are of opinion — that necessary printed matter for the board of public health and for certificates or leases for the oyster lands of the town to the town board would each constitute a proper charge. (Laws of 1893, chap. 661, § 30; Laws of 1871, chap. 639, as amd. by chap. 183, Laws of . 1887; Matter of Taxpayers of Plattsburgh, 157 N. Y. 78.) As we have already-seen, however, it became incumbent upon the persons making a-charge against the town, to make plain that such charge was in all respects a legal one and authorized by some law, and when such, bills are presented in such manner that the auditing board is not able to separate the legal from the illegal charges, it becomes their duty to refuse audit of any for such service. It is therefore, dearth at so far as the printing items are concerned the experts were authorized to find that the same were an illegal' charge against the town, and the order of the court rejecting such items was proper.
So far as the bill of James B. Curley is concerned, we have already sufficiently adverted to the subject-matter presented under the discussion of the case of Francis Brill, the former town clerk'. So far as the costs of the proceeding have been adjudged against William W. Wilson, James M. Wheelright, Sylvanüs L. Johnson,
We have not attempted in this discussion .to point out in particular detail each item which should not have been rejected, or •those items which we hold to have been properly rejected. Their number forbids an examination, or at least discussion, as to each one. Rather have we sought to enunciate such general rules as will enable the parties hereto to determine their legal rights in respect of such
It follows that the order of the court should be modified as ■expressed in this opinion, and as modified affirmed.
All concurred, except Woodward, J., absent.
Order modified in accordance with opinion of Hatch, J., without ■costs of appeal to either party.