5 Daly 194 | New York Court of Common Pleas | 1874
The court at special term delivered the following opinion:
I concur in the opinion of Judge Joseph F. Daly, in the People ex rel. Haskell v. Green, Comptroller, that the action of the board of supervisors in auditing and allowing •claims against the county for county charges, duly presen ted .and acted upon by that body, is final, and not subject to review by the .auditor of accounts, and that his and the comptroller’s action is confined to a mere examination and allowance of the proper vouchers, as affording satisfactory evidence of the nature of the claim, its presentation and due verification (as required by L. 1845, chaps. 180, 524, as amended by L. 1847, c. 490, .§ 2), and the action of this board thereon (6 Lans. 30).
This consideration answers all the objections to the payment •of the claim of the relator, except to $2,532 59 for printing, as to which it is asserted but $350 12 remains unexpended of the appropriation out of which it can be paid. As to this, an alternative mandamus ought to issue, but as to the other claims, a peremptory writ should be allowed.
E. Delafield Smith, for appellant.
I. The audit, and the allowance of the relator’s bill by reso
The powers and duties of the finance department in relation to the fiscal concerns of the mayor, &e., of the city of New .York, which, by the statute, were extended over and made applicable to the fiscal affairs of the county, are defined in article fifth of the charter (L. 1870, c. 137, §§ 33-39).
The provisions of the statute as to adjustment, audit, and payment of bills and accounts are briefly as follows, viz.: 1.. The finance department is directed to settle and adjust all claims in favor of or against the corporation, and all accounts in which the corporation is concerned as debtor and creditor. 2. The auditing bureau of the finance department shall audit, revise, and settle all accounts in which the city is concerned as debtor and creditor. 3. Vouchers for money drawn from the treasury shall be examined and allowed by the auditor and approved by the comptroller.
The charter of 1873 (c. 335, §§ 31 & 33) contains substantially the same provisions.
(5) It is conceded that, were it not for the provisions of L. 1857, c. 590, and L. 1870, c. 190, the audit and allowance by the board of supervisors of a bill or claim which was a proper and legal county charge, would be final and conclusive, and the county treasurer would be obliged to pay in accordance thereAvith (People v. Lawrence, 6 Hill, 244; People v. Supervisors of Dutchess, 9 Wend. 508). But these statutes introduced an entire change as to the powers of the board of supervisors in relation to the audit and allowance of bills and the payment of
A. Oakey Hall, for respondent, relied on People ex rel. Kelly v. Haws (12 Abb. Pr. 200-202) and People ex rel. Haskell v. Green (MSS. opinion by Judge J. F. Daly, of this court, at special term).
As respects the' question presented upon this appeal, the1 provisions of section 6 in the act of 1857 (2 L. 1857, p. 286), and of section 6 in the act of 1870 (1 L. 1870, p. 482), are substantially the same. A construction was given to the provision of section 6, in the act of 1857, by Judge Sutherland, in The People ex rel. Kelly v. Haws (12 Abb. Pr. 201, 202), which is equally applicable to the provisions in section 6 of the act of 1870. That construction is that it was not the intention of this provision to give the officers of the finance department an absolute supervisory power over the acts of the board of supervisors, in examining, settling, and allowing accounts against the county, which would be equivalent to an absolute veto check over the discretionary power of the board of supervisors. That the provision that all moneys drawn from the treasury upon the aulhori1/y of the
I agree only in part in this construction, for, in my judgment, to examine, allow and approve a voucher means something more. What is a voucher ? The word has several meanings ; but, in its ordinary signification, it means a document which serves to vouch the truth of accounts, or to confirm and establish facts of any kind. A merchant’s books are the vouchers of the correctness of his accounts, or a receipt is a voucher of a payment, but neither are conclusive. “To vouch” is to aver that a thing is true. “ It is,” says Orabbe, “ to rest the truth of another’s statement upon our own responsibility ” (Crabbe’s Synonymes, p. 441, Am. ed. of 1833). The voucher of the board of supervisors is that the claim or account submitted to them is correct, and should be paid as a valid charge against the county. But it cannot be paid unless the voucher is examined and allowed by the auditor and approved by the comptroller. How what does this mean ? The voucher is neces■sarily the account or claim, with the attestation, in some form or other, of the board of supervisors, that it is a valid charge against the county. It is presented to the auditor for examination. What is he to examine ? Is he simply to ascertain whether the attestation, or other evidence of the action of the board of supervisors, is in the proper form and duly certified by the proper officer ? The statute says he is to examine the voucher, and the account or claim is part of the voucher. A certificate of the action of the board of supervisors would be meaningless without the bill or account, for that has to go on file in the comptroller’s office as the record evidence of the claim or demand. The examination of the voucher, then, nec- • essarily means the examination of the account or claim, and if, upon looking into the account, the auditor discovers that a mistake has been made in the addition—that the items correctly added up do not amount to the sum claimed and certified to be correct by the board of supervisors, what is the auditor to do % .Is he to allow the voucher and harid it over to the comptroller,
What is an auditor? Originally it meant an officer of the king, whose duty it was, at stated periods of the year, to examine the accounts of inferior officers and certify to their correctness (Blount’s Dictionary of 1681; Cotgrove’s Dictionary of 1632; Rastall’s Termes de la Ley; Defoe’s English Dictionary of 1732), and was afterwards used to designate those officers of the Court of Exchequer whose duty, according to Ooker was to take the accounts of the receivers of the king’s revenue- and “ audit and perfect them,” without, however, putting in-any changes, their office being only to audit the accounts—that is, ascertain their correctness (4 Coke’s Inst. 107). The very object of examining and auditing an account is to ascertain whether-there are any errors or mistakes in it, and hence the; definition of the verb “ to audit,” which is to examine, settle and adjust accounts—to verify the accuracy of the statement-submitted to the auditing officer or body (McElrath’s Com. Dict.) “ At the present day,” says Wedgwood, one of the last writers upon the meaning of English words, “ this term is confined to the investigation of accounts, the examination and allowa/noe of which is termed the audit?
The act of 1857 declares that the finance department shall-have the control of all the fiscal concerns of the corporation,., and shall adjust and settle all claims and accounts either in favor-of or against the city. The county, as contradistinguished from the city—for both embrace exactly the same territory—is a part of the political organization of the State, for which, as in alh the other counties, a board of supervisors was created with analogous powers. By the act of 1857, this board was changed and limited to twelve supervisors, elected by the people, the-mayor and recorder being excluded. This act further provided that a majority of all the members of this new board should be necessary to pass any act, ordinance,or resolution appropriating money, and that such act should be presented.to the mayor for-his approval, who should sigfn it, or else return it with his ob~
I suppose the true construction of the act of 1857 to be, that the authority to appropriate money for the payment of' claims against the county was vested exclusively in the board of supervisors ; but even when appropriated, that the claim was not to be paid until it was examined and allowed by the auditor, and approved by the comptroller. That there was a. supervisory power vested in these officers, which was meant to-
It may be asked, if the auditor will not allow, or the comptroller approve, a claim which is a valid charge against the ■county and ought to be paid, what is the claimant to do % The answer is, that he has a remedy by mandamus, for the allowance and approval are ministerial duties on the part of the auditor and the comptroller, which they will be required to perform, unless they show, in reply to the writ, that the case is one in which the voucher should not be allowed or approved ; for the court may determine whether the act ought or ought not to be performed (Tapping on Mandamus, c. 2 & c. 3, pp. 177, 189).
The affidavit of the auditor sets forth the reasons why he -did not allow the voucher, distinguishing the items which he would not allow. For instance, that he would not allow $390 for the wrapping and delivery of the printed blanks for the use of the board of elections, because the.wrapping and delivery was included in the contract for the printing; nor $2,532 89 for printing done for certain courts and officers, because the •-charge was too great by $33—$33 more was charged than it was worth; nor $1,810 40 for printing done for the board of -■supervisors, because it was worth but $1,802 65 ; nor $1,628 43 :for stationery, because it was worth but $1,605 75; and lastly, that in respect to bills payable from the appropriation for printing for the executive departments and the judiciary, because there was but $350 12 remaining unexpended of that appropriation.
The duty imposed upon the auditor of examining and allowing a voucher does not justify his refusing to allow it, because, in his opinion, certain goods furnished the county, or services
Auditors were never, at common law, or in equity, entitled to pass upon - questions of law or fact disputed before them. They stated the accounts between the parties, correcting errors, or mistakes; but if any question of fact or of law arose upon the investigation of the accounts, which was disputed, they had to report it for the determination of the tribunal or body by whom they were appointed (Godfrey v. Saunders, 3 Wils. 94; Buller’s Nisi Prius, 128, 5th ed.; 1 Selwyn’s Nisi Prius, c. 1; Action of Account, Bacon’s Abr. Accompt, F; Chappelaine v. Dechenaux, 4 Cranch, 306 ; 5 Binney, 433). In Field v. Holland (5 Cranch, 20, 21), Chief Justice Marshall held that auditors were agents or officers of the court, who examine the documents, papers or accounts submitted to them. That the order appointing them bears no resemblance to a rule referring a cause to arbitrators. That their duty is simply to report to the court, stating the result of their examination, and does not require them to form any opinion whatever. I cite this, not because the duty of the auditor here is in all respects like that of the auditors formerly appointed in the United States courts,, but to show that auditors, whether in the action of account, or in equity, or in the exchequer, or in the United States courts, never decided such questions as to whether the articles or services embraced in the account were of the value charged, or undertook to reduce the amount, because, in their opinion, they were charged at too much, but merely examined the accounts
Here the auditor examines the account, not before, but after the action of the body that determines whether the claim is a valid charge, and ought to be paid, and in that examination the same office is performed, the rectification of errors or mistakes, but not the decision of matters which properly belong to the body in whom is vested the authority to order the claim to be paid.
There is nothing in the affidavit of Mr. Earle, the auditor, to warrant the inference that the amounts in the three items referred to were corruptly allowed. As I have said, the alleged excess in each item is small in proportion to the amount, and there is nothing in his affidavit that would entitle the court to ■say that he was right, upon the ground that these amounts were, •or must have been allowed through error or mistake. It was different in respect to the charge for the wrapping and delivery of the printing for the bureau of elections. If it was included in the contract for the printing (and it must be assumed that it was, for the auditor so states, and the fact is not denied), it was clearly a mistake in the board of supervisors to allow it. It appears, moreover, from the auditor’s affidavit, that the relator’s bill for this item of printing, was adjusted, audited and paid after deducting the $390 for the wrapping and delivery, and that the relator gave a receipt in full, acquiescing in the settlement after the rectification of this error. This claim, however, of $390, is ordered by the mandamus to be paid, which I think was erroneous.
The judge excluded from the peremptory mandamus the claim for $2,532 89, alleged to be payable mainly out of the appropriation for printing for the executive department and judiciary, to the credit of which there remained but $350 unexpended. As he ordered an alternative mandamus to issue in respect to this claim, I do not see what we have to do with it upon this appeal, which is an appeal from the peremptory mandamus.
I cannot agree in all the views expressed in the learned opinion of the Chief Justice, but concur in affirming the order for peremptory mandamus after reducing the amount for which the mandamus issues by the sum of $390. Following the decision of the general term of the Supreme Court in this district, in the late case of The People ex rel. Brown v. Green, Comptroller, approving the decision of Judge Sutherland in The People ex rel. Kelly agst. Haws (12 Abb. Pr. 200), and the decision in The People ex rel. Haskell v. Green, in this court (special term), and disapproving People v. Flagg (15 How. Pr. 553), I -conclude that the duty and powers of the finance department and its officers, under the act (L. of 1870, chap. 190, sec. 6), extends no further than the examination and allowance or disallowance of the vouchers presented to that department for a claim already audited by the board of supervisors. Such power in the county auditor and comptroller extends no further than an inquiry as to whether 1st. The claim so audited by the supervisors was a valid legal coutity charge. 2d. Whether the amount at which the claim was audited by the supervisors was in excess of the proofs before the board. 3d. Whether the audit of the board was without the account or items of charge required by the statute.
Where the board of supervisors acts upon a claim which is a legal county charge by allowing a sum to the claimant justified by the proofs before them, and their action has not been fraudulently procured, their audit is final and conclusive-(eases above cited and authorities referred to in them.)
Loew, J., concurred with Daly, Ch. J.
Order affirmed as modified.