17 How. Pr. 10 | N.Y. Sup. Ct. | 1858
Several suits were instituted against the relators by the district attorney of the county of Kings, in the name of the people, under the twenty-first section of the act to establish a Metropolitan police district, com
The Code (§ 303) abolishes the pre-existing fee bill, but it does not in all cases repeal the former statutory provisions relative to the liability for costs. It repeals many of them directly, and others by implication, but in all other instances they still prevail. There is no direct repeal of the provisions of former statutes imposing and regulating the liability of the people of the state for the payment of costs in unsuccessful suits instituted in their name. It is provided, however, (Code, §319,) that “in all civil actions prosecuted in the name of the people of this state, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases and to the same extent as private parties. .If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant’s costs, which shall not be recovered of the people till after execution issued therefor against such
The provision of the Revised Statutes was ambulatory, and not only applied to the then existing provisions, but became applicable to such as might thereafter be adopted relative to the payment of the costs of successful defendants in suits prosecuted in the name of the people. It was contended in behalf of the attorney-general, that such provision relates only to suits instituted by him, or those over which he has the official control; and it was said that he could not with propriety be required to certify that any other had been duly instituted as by law required. But the statute is otherwise. The provision in the Revised Statutes includes every suit in a civil case instituted in the name of the people by any public officer duly authorized for that purpose; and the Code includes all civil actions in the name of the .people by an officer duly authorized for that purpose. There is no special reference to the attorney-general as the prosecuting officer, in either provision. I can see no difficulty in his obtaining sufficient proof to enable him to give the requisite certificate in cases where the suits had been prosecuted by others. The actual institution of the suit, the propriety of instituting it in the name of the people, and the authority of the prosecuting officer, could be easily ascertained. As to the actual necessity of the requisition for the information of the fiscal officers of the state, that was a matter solely for the consideration of the legislature.
In this case there is no question as to the facts which the attorney-general is asked to certify. They are too clear to admit of any doubt. He resists the application on extraneous considerations. As the questions of law raised by him are decided against him, there is nothing left for his determination. His future action must be simply ministerial. A mandamus is, therefore, an appropriate remedy for the relators. As it may be deemed expedient that my opinion upon the questions of law should be reviewed, I shall not direct a peremptory mandamus. An alternative mandamus is awarded.