175 A.D. 721 | N.Y. App. Div. | 1916
Lead Opinion
The relator, a citizen, taxpayer and elector of the State, has applied for and obtained a peremptory writ of mandamus commanding the State Comptroller to examine the accounts of the Panama-Pacific Exposition Commission, or other persons who received any part of the appropriation of the Legislature for the exposition, under the provisions of chapter 541 of the Laws of 1912, and subsequent acts under which appropriations aggregating $700,000 were made. The Comptroller, who acted in the matter under the advice of the Attorney-General, appeals from the order.
The Legislature of 1912 enacted “An act to provide for the representation of the State of New York, at the Panama-Pacific International Exposition at San Francisco, California, celebrating the opening and commercial use of the Panama canal, and making an appropriation therefor,” under which there was an appropriation of $250,000, subsequently twice increased, until the aggregate of the appropriations reached $700,000, all of which were to be governed by the provisions of the original act. (See Laws of 1913, chap. 347; Laws of 1914, chap. 246; Laws of 1916, chap. 646, § 6, p. 2465.) The original act provided for a commission of fifteen members, who were commanded by the act to “ encourage and promote a full and complete exhibit of the commercial, educational, industrial, artistic, military, naval and other interests of the State, and its citizens, at such exposition and celebration, and shall provide, furnish and maintain during the exposition a building or buildings for a State exhibit and for the official headquarters of the State, and for the comfort and convenience of its citizens and exhibitors. ” The members of the commission were not to receive any compensation, but were allowed their “ actual necessary expenses incurred while in discharge of duties imposed upon them by the commission, ” and an appropriation of $250,000 was made. This money was to be “paid by the Treasurer on the warrant of the Comptroller issued upon a requisition signed by the chairman and vice-chairman of the commission, accompanied by an estimate of the expenses for the payment of which the money so drawn is to be applied.” (Laws of 1912, chap. 541, §§ 2, 3, 5.) It was further provided in the same section 5 that “within
By the order now before us for review, the Comptroller is directed to “examine the accounts rendered by the Panama-Pacific Exposition Commission or by any person or corporation having received any part of the appropriations of seven hundred thousand ($700,000) dollars for the purposes of the Panama-Pacific Exposition, with the vouchers theróof, and to audit, adjust and make a statement thereof; to require all persons who have received moneys of the State out of said appropriations who have not heretofore properly accounted therefor, to render statements thereof to him and, if necessary, to examine them upon oath before him; and upon such statement of such persons to state an account against any such person or persons who shall have received any money out of said appropriation unauthorized by law and to transmit the said account to the Attorney-General of the State of New York for prosecution, all in accordance with the statute in such case made and provided;” and fifty dollars costs are imposed.
The purpose of a writ of mandamus is not to discover dishonesty and fraud, but to compel the performance of strictly legal duties; and if there is any fair question about the relator’s right to have the duty performed the writ should not issue. The learned court at Special Term (96 Misc. Rep. 490) seems to have proceeded upon the theory that no funds of the State could be legally disbursed without the duty falling upon the Comptroller to audit the accounts, and that this duty persists even though the funds have been paid out. In support of .this
It will thus be seen, that People ex rel. Grannis v. Roberts (supra) cannot be an authority for the broad proposition stated, though, undoubtedly, stating the law of that case correctly. The Legislature could not audit or allow a private claim against the State, but it could make an appropriation by law to pay the expenses of its own commission and the members thereof, and it could make that appropriation available upon the estimates made by its commissioners, and it clearly had a right to provide how the commissioners should account for the sums expended, and what evidences of such expenditures should be preserved in the public offices of this State. It was probably the duty of the Comptroller to check up the account as stated by the commission, and to see that the amount turned back into the State treasury corresponded with the statement of expenditures as furnished by the commission, but the suggestion that he had any authority to "review the discretion delegated to the commission in making requisitions, or in accounting for the expenditures made, is without foundation in the laws of this State as we read them. This was a special act for a particular public purpose; it provided all of the details which the Legislature thought proper in a commission of this character, and the only limitation which was imposed upon the commission was to use the funds for the general purposes indicated by the provisions of the statute in good faith, conforming, of course, to the conditions which were specifically imposed. That is, in order to draw upon the fund appropriated it was necessary for the commission to make a requisition upon the Comptroller, accompanied by an estimate of the expenditures for the payment of which the money so drawn is to be applied, and within ninety days of the closing of the exposition, afterwards extended to June 30, 1916, it was made the duty of the commission to make a report to the Cpmptroller of the disbursements made by it, and to return to the State treasury the unexpended balance of the money drawn in pursuance of this act. This was the only and exclusive audit provided for by the Legislature for this particular fund. No
The law not having made it the duty of the Comptroller to pass upon this particular account in any manner, except inferentially to determine the amount of the unexpended balance, which was to be returned to the State treasury, it must be obvious that there is no such clear and precise legal duty owing by the Comptroller as to justify the issuance of a writ of mandamus. If the commission has acted in bad faith; if moneys have been expended outside of the scope of the appropriation, the statutes of this State provide an adequate remedy. (Code Civ. Proc. § 1969.) It is peculiarly improper, in the present case, that the Comptroller, who is alleged to have shared in some degree in the improper use of the funds of the State, should be called upon to undertake an audit such as is directed by the order here under review. The relator has mistaken his remedy; there is an adequate remedy at law for any of the matters which are complained of, and it is an abuse of the writ of mandamus to make use of it in the manner directed by the order.
The order appealed from should be reversed, with ten dollars costs and disbursements.
All concurred, Kellogg, P. J., in memorandum, in which all concurred except Cochrane, J who dissented and voted for affirmance.
Concurrence Opinion
I agree that under the circumstances shown a further audit by the Comptroller can do no possible good to any one. An audit is not a remedy to recover money, and in this case it could furnish no reasonable aid in an action seeking such relief. The claim that the audit may furnish prima facie evidence in
By a mandamus the Comptroller may be compelled to act, but is not directed how to act. The. law and the practice of the Comptroller’s office determines how he will make an audit, and it is not necessary or proper for the court to instruct him in advance how he shall perform his duties. As was said by Judge Vann in People ex rel. Harris v. Commissioners (149 N. Y. 26): “That would substitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was issued.” The order, therefore, is erroneous. If any practical result could follow the court might modify it. But no benefit can come to any one from a further audit.
I think the Comptroller has a certain duty to audit in such cases (State Finance Law, §§ 4, 21, 23), but his judgment and discretion cannot override the judgment and discretion of the commission. He cannot as a judge pass upon the good faith or good judgment of the commission. In this case he has, under all the circumstances, made all the audit "of the report of the commission that can properly be required. In the exercise of a sound discretion the writ "should not have been granted.
All concurred, except Cochrane, J., who dissented and voted for affirmance.
Order reversed, with ten dollars costs and disbursements, and writ dismissed, without costs.