17 How. Pr. 142 | N.Y. Sup. Ct. | 1859
The fourteenth section of the seventeenth title of part third, chapter eight, of the revised statutes, directs that whenever costs -are adjudged against the people of the state in any civil suit or proceeding instituted by any officer duly authorized for that purpose, it shall be the duty of the comptroller to draw on the treasurer for the amount thereof, upon the production of an authenticated copy of the judgment record, etc., and upon a certificate of the attorney general that such suit or proceeding was duly instituted as by law required. This is a mandamus to compel the attorney general to certify, pursuant to this section, that certain suits for penalties, un
It will be observed that the statute does not require the defendant to make the certificate in question, but it commands the comptroller to draw his warrant upon the treasurer, on the production of the proper evidence of the amount of these costs, accompanied by the attorney general’s certificate. The learned judge, at special term, held that this provision, that an act of a public nature should be performed by the comptroller upon the performance of another act by the attorney general, was equivalent to a direction that the latter act should be done by this officer. Admitting this to be so, and that certifying under this statute is an act properly controllable by mandamus, both of which are propositions which I mean to pass without examination, as they are not .material in the view I take of the case; admitting, I say, both these propositions, it is obvious to us that the duty of the attorney general can only be commensurate with that of the comptroller. When a case is presented, in which, with the certificate before him, it would be the duty of the latter officer to draw his warrant, it would be the duty of the former to certify. But when the comptroller ought not and could not draw his warrant, with the certificate, the attorney general ought not to make the certificate. Are we to be called upon to compel one of these officers to make a certificate which the statute says shall be sufficient to impose upon the other the duty of drawing his warrant on the
The inability of the treasurer to pay this bill of costs, or rather the constitutional inhibition upon his paying it, is a sufficient reason why this mandamus should be denied. When the end cannot be accomplished, none of the machinery should be set in motion. The object of all the provisions of the statute is to regulate and provide for the payment of such claims out of the public treasury, in the manner prescribed by law, and none of the proceedings which the statute contemplates is to be used for any other purpose than as one step in
S. B. Strong, Lott, Emott and Brown, Justices.]
It is said that we may presume that at some future time an appropriation will be made by the legislature for the costs in these and similar actions, and that the forms and proceedings which we are asked to compel the public officers to go through with, although fruitless now, may become effectual then. The answer is that we are to decide this case by the facts as they exist now, and as they are placed before us. If the relator fails on these, he cannot sustain himself by conjectures of what is possible or probable in the future.
A peremptory mandamus is denied, and the defendant must have judgment with costs.
Lott, J. and Brown, J. concurred.
S. B. Strong, J. dissented.
Peremptory mandamus denied.