People ex rel. Baldwin v. Board of Supervisors

12 How. Pr. 204 | N.Y. Sup. Ct. | 1856

E. Darwin Smith, Justice.

By the 13th section of the act providing for taking the census of March 12th, 1855, the accounts for the services of the marshal, performed under said act, were to be audited by the supervisors of the county where the services were performed, and assessed, collected and paid as part of the contingent expenses of the county; and by the supplemental act of April 6th, each marshal was entitled to receive two dollars for each day he was actually and necessarily employed, to be audited and allowed as aforesaid.

Neither of these acts directs how the accounts of the marshal shall be made out, verified, or proved, and they are, therefore, necessarily governed by the general provisions of law regulating accounts presented to boards of supervisors in 1 Rev. Stat. Ath ed. 680, §§ 26 and 27.

The relator’s claim stands upon the same footing with all other accounts against the county, required to be audited by the board of supervisors, which may be allowed in whole or in part, or disallowed, notwithstanding the verification thereof.

It is the duty of boards of supervisors “ to examine, settle and allqw all accounts chargeable against their respective counties.”

The proper discharge of this duty involves the exercise of judicial functions, the receiving of evidence, the hearing, considering and determining in respect to the justice and legality of each and every claim presented for allowance. The relator presented to the respondents a claim against the county of Livingston for fifty-nine days’ services. He was entitled to be be paid two dollars per day “ for each day he was actually and necessarily employed.” How many days he actually and necessarily spent in the discharge of his duties as marshal was a question which the respondents were necessarily called upon to ascertain, determine and decide, before they could legally pay his account. When that question was decided, the law fixed the amount of his compensation at two dollars per day for each day’s service.

The duty to “ examine, séttle and allow ” his account was practically discharged when they had ascertained and determined the number of days he was actually and necessarily employed, and could not be properly performed without examining and considering that point.

The respondents say, in their return, that they did proceed to examine,' settle and allow the relator’s account; that, upon such examination and settlement, they ascertained, believed, found and- determined, that the relator was not actually and necessarily employed as such marshal fifty-nine days, but was so employed forty days, and no more ; and that they had audited and allowed his account at eighty dollars. This is in the nature of a judicial determination.

Such determinations of inferior officers, or of subordinate tribunals, it is not the office of the writ of mandamus to bring up for review in this court. If the respondents had refused to examine, audit and allow said account, this court, by the writ of mandamus, would require them to do so. But the respondents have not refused to audit the account: they have only exercised their discretion as to the extent of the allowance, not in regard to the rate of compensation, but in regard to the time for which the county should be charged. In such cases a mandamus will not lie. (The People agt. The Supervisors of NewYork, 1 Hill, 367; The People agt. The Supervisors of Albany, 12 John. 414; Hull agt. The Supervisors of Oneida, 19 id. 259; People agt. Supervisors of Dutchess, 9 Wend. 508.)

If the supervisors have erroneously disallowed the nineteen dajrs, the relator can have no relief by mandamus. This court is not so destitute of business that it will be likely soon, if ever, to attempt drawing to itself the work of investigating the accounts and claims presented to the various boards of supervisors in the state, that it may review their numerous decisions and adjudications on such claims.

The motion for peremptory writs of mandamus in these cases is denied, with leave to the relator to plead to the returns, or demur.