27 N.Y.S. 825 | N.Y. Sup. Ct. | 1894
The principal question to be determined on this appeal is whether the actions prosecuted in the name of the-
Prior to the enactment of chapter 488 of the Laws of 3892, most if not all of the legislation for the protection of game and fish in the state was of a local character, with the powers and duties imposed and conferred for their enforcement upon certain local officers and boards acting in towns and counties, and the penalties for the violation of such laws were given, some portions to the informer, and the balance to the county in which the action was brought. By section 33, c. 534, of the Laws of 1879, district attorneys were required to prosecute for penalties for violation of the game laws, and one-half of the penalty belonged to the informer, and the other half was required to be paid to the treasurer of the county in which the action was brought. This chapter conferred jurisdiction upon courts of special sessions of towns to try all actions for penalties, and directs the payment of the fines and penalties so coUected to the county treasurer of the county where the offense was committed, and makes it the' duty of all sheriffs, constables, and game constables to arrest for violations of such act. The same chapter confers jurisdiction upon the boards of supervisors of the state, except in the counties therein expressly excepted, to appoint game constables, who were authorized to prosecute for penalties under the game laws, and made their compensation for such service a charge against the county. Chapter 591 of the Laws of 1880 authorized the governor to appoint eight game and fish protectors, who were authorized to prosecute actions in the name of the people for violations of the game laws of the state, and district attorneys of counties were, on request of the game protectors, to prosecute for penalties; and the moneys collected in such prosecutions, except costs, which belonged to the district attorney, were required to be paid to the county treasurer of the county in which the actions were prosecuted, and, after reimbursing
“But we think the action was brought for the benefit of the county of Warren, within section 3243 of the Code, whether brought upon the information of the state game protector, or some other person. The statute, as we have said, assumes that the protection of game and the enforcement of the game laws is a county interest. It imposes upon county officers the duty of bringing actions. 'It requires the county treasurer to advance from the county funds the necessary sums for disbursements and expenses. Whether the county is pecuniarily benefited or not by the recovery, a county interest is thereby protected.”
The court in that case held that the county should pay the costs to the defendant on his recovery. But it will be remembered that the law under which that action was prosecuted required that the penalty, in the first instance, went into the county treasury, for the express purpose of indemnifying the county against all costs and expenses, while in this, as we have seen, no part of the proceeds of the litigation, if successful, could, by possibility, reach the county treasury, either of the county in which the game was killed, or any of the counties through which it is alleged it was carried by the de
The judgment certified by the clerk, to which the certificate of the attorney general is desired, imports on its face absolute verity, and the certification of the same by the attorney general is in no sense a judicial, but is purely a ministerial, act, and it is quite unlike that required of the attorney general in perfecting the charter of an insurance corporation; and no point is made that a mandamus is not the proper remedy for the relator. The order of the special term must be reversed, and a peremptory writ of mandamus awarded, with costs and disbursements in favor of the relator. All concur.
Code Civ. Proc. § 3241, provides that “where costs are awarded against the people of the state in an action of special proceeding * * * the comptroller must draw his warrant upon the treasurer for the payment of costs, out of any money in the treasury appropriated for that purpose, upon the production to him of an exemplified copy of the judgment, or order awarding the costs, and, where the amount is not fixed thereby, of a taxed bill of costs, accompanied in either case with a certificate of the attorney general, to the effect that the action or special proceeding was brought pursuant to law.”