23 How. Pr. 89 | N.Y. Sup. Ct. | 1862
The relator sued out1 of this court an alternative writ of mandamus directed to the board ,of supervisors of the county of Kings, commanding them to pay to him the sum of $139.50, claimed to be due to him for publishing in the newspaper known as the Standard, the comptroller’s notice of tax sales of lands in the county of Kings, in June, 1861, or to show cause, &c. why the same should not be paid. The board of supervisors made their return to the writ, answering the material allegations thereof, and denying any legal liability on their part to audit and pay the claim. To this return the relator put in a demurrer, as not containing any sufficient reason why such claim should not be audited and paid.
The board of supervisors, at their annual meeting on the first Monday of August, 1860, proceeded to designate and appoint two newspapers for publishing the session laws, pursuant to section 3 of the act of 1845, (Sess. L., p. 305.) In executing this trust, they doubtless failed to observe the plain directions of the statute, which are, that each member shall designate by ballot one newspaper printed in the county, to publish the laws, and the paper having the highest number of votes, and the paper having the next highest number, shall be the papers designated. The whole number of ballots cast was 24; of which 22 contained two names, one contained one name, and one was a
But there is another consideration which effectually disposes of the claim of the relator. This is not an action to try the title to the office, if it could be regarded as one ; nor to test the validity of the comptroller's sales upon notices published in papers not .legally selected ; but an application for the prerogative writ of mandamus to compel the payment of a debt which neither the comptroller nor the board of supervisors ever contracted. The services were not rendered at their request, but were voluntarily rendered by the relator, without intimation, recognition or request. There was no express contract, and nothing from which an assumpsit can be implied. I need not refer to authority to show that labor and services voluntarily done for another, without his privity or consent, however meritorious or beneficial to him, affords no ground for an action. The law of implied assumpsit rests upon the principle that there must be a request or an assent of some kind from which the law may infer a promise. These services were not only voluntarily, but needlessly rendered, for the relator Avell knew that the board of supervisors had selected the Eagle and the Times to do the work, and had failed to select the Standard. Upon no principle to which we have referred, is the relator entitled to the benefit of the writ of
Judgment should be rendered for the defendants.
The relator has mistaken his course. We cannot in this proceeding go behind the designation or formal act of the supervisors, even if that act or choice was conducted upon wrong principles. If we had been applied to for a mandamus to compel the defendants to designate the relator, there would have been a different question. That would be the question, whether he had received a vote, or that number of votes which entitled him to the office. But we cannot order his account to be paid, because he ought to have been designated, any more than we could award the salary of an office to a man who had never received a certificate of election, nor contested the title of another person who had the certificate, because he ought to have been declared elected.
There should be judgment for the defendants.