People ex. rel. Baldwin v. Board of Supervisors

26 Barb. 118 | N.Y. Sup. Ct. | 1857

By the Court, Welles, J.

The 13th section of the act of March 12th, 1855, in relation to the state census, (ch. 64, p. 90, of Sess. Laws of 1855,) provides that “the accounts for the services of the marshals and county clerks, done under this act, shall be audited by the supervisors of the county where the services are performed, except in the city and county of Hew York, where it shall be done by the common council; and shall be assessed, collected and paid as part of the contingent expenses of such city or county;” and by the 3d section pf the act of the same session, passed April 7th, (ch. 181, p. 259,) amending the first mentioned act, each “marshal shall receive for his services rendered under and by virtue of the act hereby amended, the sum of two dollars and no more, for each day he is actually and necessarily employed, to be audited and allowed by the board of supervisors in the county where he shall reside." Keither of the above acts provides any mode by which the boards of supervisors shall determine the number of days any marshal has been actually and necessarily employed in performing the services, under the act. It is not contended, and cannot be successfully, that the claim of the marshal must be audited and allowed by the supervisors for any number of days which the. former may claim, although verified by his oath.

The revised statutes provide, that the board of supervisors of each county in this state shall have power at their annual meetings, &c., among other things, “to examine, settle and allow all accounts chargeable against such county, &c. (1 R. S. 366, 367, § 2; subd. 2, 4th ed 1st vol. 675, 676.) The account of the relator in this case was chargeable against the county of Livingston; and it was the duty of the supervisors to examine, settle, and allow it. The acts under which the services were rendered, fixed thejper diem allowance therefor, and entitle him to be paid at that rate, for each day he was actually and necessarily employed. It follows, necessarily, that the supervisors must examine and decide as to the number of days, and when that is determined, the rest of their duty is ministerial; and if they omit to discharge it, a mandamus will lie to compel them.

But in the examination and decision of the question of the number of days the marshal was actually and necessarily employed, the board of supervisors act judicially; and if they commit an error in their decision, it forms no ground for the writ of mandamus. This is a principle too well settled to require the citation of any authority to prove it.

It is claimed by the relator that the return is defective, in • not answering the statement in the writ that the relator waps actually and necessarily employed fifty-nine days. The return states that the relator presented his account for fifty-nine days, and that the defendants thereupon examined, settled and allowed the said account. That upon such examination and settlement, they ascertained and believed, found and determined, that the relator was not actually and necessarily employed as such marshal fifty-nine days, and in like manner ascertained and believed, found and determined, that he was not so employed over forty days, and thereupon the supervisors audited and allowed said account for the sum of eighty dollars; and they deny that they have refused to audit and allow "the relator’s account for services rendered by him as such marshal.

[Monroe General Term, December 7, 1857.

If, in determining the number of days the relator was em- ■ ployed as such marshal under the aforesaid acts, the board of supervisors acted judicially, the number of days the relator was in fact so employed was, in respect to this proceeding by mandamus, wholly Immaterial. The return shows that the defendants had judicially determined that question, and such determination must, in this proceeding, be regarded as final.

It is sufficient to say in conclusion, that we concur fully in the views of Mr. Justice Smith, expressed when these parties were before him upon this same question, as reported in 12 How. Pr. R. 204.

Judgment should therefore be given for the defendants on the demurrer.

Johnson, Welles and Smith, Justices.]