35 Barb. 653 | N.Y. Sup. Ct. | 1861
It seems quite clear that the contracts between the relator and the board of health, for the removal of offal &c. from the streets of the city, under which the relator claims relief in this proceeding, are valid and binding on the city. Being valid, if the relator has performed the labor agreed to be performed by him under and pursuant to the contracts alluded to, there can be no doubt but that y ' he may maintain an action against the city, to recover the compensation to which he is entitled. When a party has a remedy by action, he cannot have a mandamus.
The relator’s counsel concedes the correctness of the position, but'insists that inasmuch as he has performed the labor and procured his account therefor to be settled, audited and allowed by the officers of the city government, and having procured from the comptroller a warrant on the treasury for the payment of the amount due, which it was the duty of the mayor to sign without assuming to pass upon the question whether the work called for by the contract had or had not been performed, there was no necessity for an action against the city, and that it was the duty of ¿the mayor to affix his
The counsel for the defense insist that the mayor has a discretion as to whether or not he will countersign warrants drawn by the treasurer, and that it is his duty to refuse to do so when he knows that the service in payment of which the warrant is drawn has not been performed; and that in this case it being conceded that the work was not performed in conformity to the contract, the mayor cannot be compelled to countersign.
The 22d section of the amended charter of 1857 creates a department in the city government, of finance, under the control and management of the comptroller of the city. All accounts rendered to or kept in the other departments are made subject to the inspection and revision of the department of finance. It is authorized to settle and adjust all claims in favor of or against the. corporation, and all accounts in which the corporation is concerned as debtor or creditor. It also provides for a bureau in the same department for the reception of all moneys belonging to the city, and for the payment of moneys on the warrants drawn by the comptroller and countersigned by the mayor and clerk of the common council. The chief officer of which is the chamberlain.
The same section provides for another bureau in the same department, to be called the auditing bureau. It is authorized to revise, audit and settle all accounts in which the city is concerned as debtor or creditor. It is further provided, that all moneys drawn from the city treasury shall be upon vouchers examined and allowed by the auditor and approved by the comptroller and filed in his office.
By section 18, subdivision 4, it is made the duty of the mayor to exercise a constant' supervision over the conduct and acts of all subordinate officers, * * * and generally to perform all such duties as may be prescribed for him by the charter and city ordinances, and the laws of the state and of the United States. Section 32 provides that, until
Why does the legislature require a warrant on the treasury to be countersigned by the mayor and clerk of the common council ? These officers have nothing to do with auditing or settling accounts or claims, so that they can thereby be informed of theh justice or propriety. The object, however, must be as a guard against fraud, to secure the treasury against the negligence or dishonesty of those officers who are intrusted'with the settlement of claims against the city. If, however, the mayor and clerk have, as is contended, no right to refuse to countersign the warrants of the comptroller, how can they act as a guard against fraud on the- treasury P If they have no discretion, then they are bound to countersign every draft drawn in proper form. The accounts of the clerks in the mayor’s office, and in the office of the clerk of the common council, are required by law to be audited by some officer in the finance department. How suppose a draft is presented to either of these officers, in favor of one of his clerks, for services which he knows the clerk has never rendered ; is he to countersign it ? Is he to close his eyes to the fraud, and become a participator in perfecting it ? Such a proposition cannot, it seems to me, be supported. If the object in requiring these officers to countersign was to prevent abuse, to protect the treasury from being plundered, to pay unfounded or fraudulent claims, we must give effect to the intent, by holding the officers to be clothed with the right to refuse to countersign a warrant on the treasury drawn to
I understood the relator’s counsel to admit that these officers were not bound to countersign a warrant which they knew to be drawn to pay a fraudulent claim; but he is of the opinion that it is the only case in which they are at liberty to refuse. Does it matter whether the claim is utterly unfounded, or whether the amount allowed is grossly extravagant ? Either is fraudulent, and it is the duty of the mayor and clerk to interfere and prevent its successful accomplishment as well in the one case as in the other. It may be said that it is the right of the mayor and clerk to refuse to countersign in the cases supposed, but that they have no such right when a claim has been audited and allowed by the proper officer and a warrant drawn therefor. In other words, that it is the duty of these officers to countersign in all cases except when they know the claim to be fraudulent in whole or in part. If these officers are to act as guardians of the treasury—if they are to protect, so far as in them lies, the city from the payment of unfounded and dishonest claims— they must have the means of knowing whether the claim is one proper to be paid, and it is their duty to inform themselves in regard to it, and countersign or refuse, as they may deem proper, after such investigation. In this way, and in this way only, can these men effectually protect the treasury. It is said that to require these officers to investigate every claim, to pay which a warrant is drawn, and to permit them to suspend all payments until these investigations are made, is to block the wheels of government and prevent all payments from the treasury. The first answer to this suggestion is, that if it is impossible for these officers conscientiously to discharge the duty of guarding the treasury by countersigning warrants only for such claims as they are satisfied after investigation are just, the law which requires them to countersign should be repealed. An officer who will countersign a warrant which he is not sat-.
I have thus far treated the question as if the charter alone regulated the manner in which money should he drawn from the treasury. The common council have by ordinance made regulations on the same subject. The only difference between the ordinance and charter, in this respect, is that the latter requires the vouchers to be presented to the mayor with the warrant to be countersigned. If I am right in my construction of the charter, the ordinance requires nothing in addition to it. Heither the mayor nor the clerk can act understandingly without the inspection of the vouchers. The ordinance merely expresses what is fairly implied from the language of the charter.
There is still another view of this case, which it seems to me is conclusive against the relator: it is this. The mayor and clerk owe him no duty; they act for the corporation; they are its agents and servants, and the relator cannot in this respect require them to perform any duty toward him. A creditor of the city performs his duty when he appears before the proper board or officer and procures his claim to be audited and settled. It is then the duty of the city to pay. He is under no legal obligation to wait on the comptroller for a warrant, and, having procured it, to procure the signature of the mayor and clerk of the common council. The corporation must see to it that the debt is paid; its servants must go through the ceremonies necessary to get the money from the treasury with which to pay the debt. The vouchers are required by the ordinance to be submitted to the mayor with the warrant. Was it crntemplated by the framers of the ordinance that the vouchers should pass into the hands of the creditor, and that he, if dishonest, should have an opportunity to alter them ? It seems to me not. There is no law, that I can find, which releases the corporation from paying its debts in the same manner as any private citizen. If, when a warrant is presented to the mayor to be countersigned by
I am therefore of the opinion, 1st. That the relator has a remedy at law, and for that reason a mandamus cannot be awarded to him. 2d. The mayor and clerk of the common council owe the relator no duty, and that they cannot be required by him to countersign his warrant. The corporation' is the only party who can compel them to act. 3d. Those officers have in this case, by the charter, a discretion, which they may exercise in countersigning or refusing to countersign a warrant on the treasury, and the court will not compel them to countersign in opposition to their own sense of
The order of the special term should be reversed.
The provisions of the charter and of the ordinances, declaring that no money can be drawn from the city treasury, except on a warrant drawn and signed by the comptroller and countersigned by the mayor and clerk of the common council, is an arrangement merely for the protection of the corporation against fraud. It is a part of the scheme of internal economy for the more convenient regulation of its own business, and imparts no legal rights whatever to any other person. The duties of the municipal officers, in relation to those provisions of the charter and ordinances, are due and only due to the body of whom they are the servants. A writ of mandamus lies in favor of one person against another, only of course when the latter owes him a legal right. If any one has a demand for a debt against the corporation, as that body can be sued in an ordinary action, proceedings by this writ are not maintainable; nor are they maintainable against any officer of that body to compel him to facilitate the satisfaction of that demand. If he refuses to do what the charter and ordinances prescribe, he fails to do what his duties to the corporation require; and to it, and to it alone, I repeat, he is responsible. But we have been referred to the case of The People v. Flagg, (16 Barb. 503,) in which this court at general term, in the first district, granted a mandamus to compel the comptroller of the city to draw his warrants upon the chamberlain, for certain sums, due on a contract, by the city, to Beynolds, the relator. We consider the doctrine, laid down in this case, carried to such extent as to have a tendency to confound the statutory distinctions always observed between this remedy and the ordinary remedies which the law affords. Nevertheless, if a case precisely of the same nature, or precisely analogous to
The order of the special term should be reversed, and the writ of mandamus denied with costs.
Babnabd, J. concurred. Order reversed.
Clerke, Mullin and Barnard, Justices.]