47 N.J.L. 417 | N.J. | 1885
The opinion of the court was delivered by
The first contention against the allowance of this writ is, that there has been no such refusal to pay the balance of the relator’s bill as would lay the foundation for a writ of mandamus. It is not disputed that the resolution of May 11th, 1885, was equivalent to a refusal to pay. The contention is, first, that the meeting of the board on that day was illegal, and, second, that its session was not such a meeting as that an order for the payment of the relator’s bill could then lawfully be made. Hence the argument is that the
The act of 1880 provides that no bill shall be ordered paid' by the board of chosen freeholders of any county of this state, except at a regular meeting of said board, and then only when properly itemized and verified according to law. Pamph.. L. 1880, p. 316. The sixth section of the statute in relation to chosen freeholders provides for a stated meeting of the board to be held on the second Wednesday in May in each year. At this stated meeting members are required to attend without any notice. The tenth section provides for special meetings to be convened by the director, or in case of his-absence, inability or death, then by the clerk of the board, on application in writing of three of the chosen freeholders, specifying the business, object and purpose of calling such board, and upon notice in writing directed to the respective-members of the board, and left at their respective places of abode, mentioning therein the time and business, object or purpose of such meeting. Pen., pp. 128, 129. The supplement of 1875 provides that whenever it shall be necessary to convene a special meeting of the board, the clerk, on receiving the notice of meeting prescribed by the tenth section of the act, shall convene a meeting of the board by a notice-in writing directed to the respective members of the board,, and mailed to the post-office nearest to their respective places of abode, at least ten days prior to the day of meeting. Pev., p. 134, § 46. A supplement passed February 28th, 1883, makes it the clerk’s duty to convene special meetings of the board on the written or printed request of the director or any three members, sjDecifying the business, object and purpose thereof, by notice to the members sent by mail at least five-days before the day of meeting, and stating the business,, object and purpose thereof. Pamph. L. 1883, p. 44. The-act of 1880 does not restrict the power of the board to order bills paid to the stated meetings prescribed by the sixth section of the act. Any meeting, stated or special, is a regular meeting within the meaning of that act.
Nor should the relator be denied this writ on the ground that remedy by action is the proper relief. The theory of the relator’s claim to have this money paid by the county is,, that the approval of his bill by the presiding judge of the-court, and the order for its payment, are an auditing of his account, by force of which the duty is laid upon the board of freeholders to provide for the payment of the sum so certified,. without any qualification or discretion, and it is settled that in such cases a mandamus may issue. Clarke v. Jersey City, 13 Vroom 94. An examination of the precedents will show that the practice of the court is, that where the facts are in dispute-the court will generally leave the party to his action; but where the facts are undisputed, the court — the relator having a right to the specific relief sought — will exercise a discretion in deciding the legal questions on an application for the writ,. or putting'the party to an action. This practice is convenient and conducive to the speedy administration of justice, especially since the practice has grown up of facilitating, in proper-cases, a review by writ of error of the decision of this court in granting or refusing writs of mandamus. We consider the case, properly here for consideration, upon the merits.
In this state it is the settled doctrine that the expenses incident to the administration of justice devolve upon the several counties, except where there is express legislative provision for the payment of such expenses by the state. For this doctrine I need cite only State, Lewis, pros., v. Hudson County, 8 Vroom 254. It is also undeniable that the employment of additional counsel to assist the prosecutor of the pleas in the prosecution of indictments in special and difficult cases, is an expense that falls within the category of expenses in further
In State, Lewis, pros., v. Hudson County, already cited, this court, while it affirmed the obligation of the county to defray the expenses incurred in the due administration of justice, regarded the obligation as a moral obligation merely, and, as the law then stood, the obligation was a moral obligation, in the sense that there was no statute which imposed the duty as a legal duty or prescribed any means for determining the amount that should be paid. Hence the court in that case treated the whole subject as being within the discretion of the board as to whether such expenses should be paid, and left it discretionary with the board as to the sum that should be paid. To meet this condition of affairs section 100 of the Criminal Procedure act was passed. That section enacts that “ it shall be the duty of the prosecutor of the pleas for each county to use all reasonable and lawful diligence for the detection, arrest,, indictment and conviction of offenders against the laws; and all necessary expenses incurred thereby, verified, to and approved under his hand, by the presiding judge of the Court of Oyer and Terminer or General Quarter Sessions of the Peace for any county, shall be paid by the board of freeholders thereof.” Rev., p. 286.
The language of the section quoted is quite general. It is made the duty of the prosecutor “ to use all reasonable and lawful diligence for the detection, indictment and conviction
But it is insisted on the part of the defendants that the prosecutor was disabled from employing counsel to assist him in the prosecution and trial of indictments, and that therefore section 100 of the Criminal Procedure act is inapplicable. This contention is placed on two grounds: First, upon the first section of the act of April 16th, 1846, which provides for the appointment of a prosecutor in each county, whose duty it should be to prosecute the pleas in such county in the absence of the attorney-general; and the third section of the act of February 24th, 1854, which provides that the criminal business of the state should be prosecuted exclusively by the prosecutor of the pleas, except in a county whore, for the time being, there may be no prosecutor, or where the prosecutor desires the aid of the attorney-general. Rev., p. 56, §§ 3, 4. The act of 1846 was in this respect substantially a re-enactment of the act of December 11th, 1823. Harr. Comp.,p. 49. It created the office of prosecutor of the pleas to conduct the
Second. It was contended that the services rendered by the prosecutor should have been performed by the attorney-general, whose services might have been had without expense h> the county, and that it not appearing in the depositions that the attorney-general had been requested to attend, the employment of the relator is not shown to have been reasonable.. Pamph. L. 1882, p. 214. The act of 1882 is a supplement to the act of February 11th, 1854, simply substituting a fixed salary for the attorney-general in lieu of other compensation, and by the act of 1854 it is made the duty of the attorney-general to attend the trial of homicide cases and other high crimes, on the written request of a justice of the Supreme Court or of the board of freeholders only when such attendance is not incompatible with his other duties. Rev.,p. 56, § 1. Waiving for the present the question of the conclusiveness of the judge’s certificate, and treating his action only as an audit of the relator’s account, the presumption, in the absence of proof, is that this duty was performed, and that the account as audited and allowed is correct. State, Butts, pros., v. Mayor of Hoboken, 9 Vroom 391.
In the next place it was insisted that the judge’s certificate of approval was only prifna facie evidence; that it was the province of the board of freeholders to determine whether the employment of the relator was needful and proper, and to fix the compensation to be paid for his services, and that the board was not in either respect controlled by the certificate of the judge. People v. Supervisors of Fulton, 14 Barb. 52, was relied on for that position. The statute in that case proT vided that a reasonable compensation to the district attorneys for certain services, to be certified by one of the justices of the Supreme Court, should be audited and allowed by the board of supervisors, and paid out of the county treasury. It wall be observed that the statute there in question conferred upon the board of supervisors the power to audit and allow — words importing the exercise of judgment and discretion — to hear,
The duty to audit and allow is delegated to the presiding judge, and his approval is the voucher upon which payment is to be made. His certificate is made a final determination of the obligation to pay and of the sum to be paid, as much as if it had been expressly fixed by statute. In People, ex rel. Downing, v. Stout, 23 Barb. 338, a statute empowered the board of supervisors to establish the fees for recording births- and marriages, and the court held that when the fees had once been fixed under the authority conferred by the statute, they were binding upon future boards in auditing and allowing; accounts for such services, as though they had been fixed by the legislature, and that subsequent boards were obliged to allow accounts on the basis of the prescribed fees. Morris v. People, 3 Denio 382, in which the payment of a salary fixed by law was in controversy, is a precedent of similar import. The ground of decision in these cases was that the amount to-be paid being fixed by statute or under legislative authority,, the boards of supervisors, notwithstanding the extensive powers conferred upon them in reference to county charges, had in such cases no discretion to exercise, and that the duties
We think that the judge’s certificate of approval of these •expenses is conclusive, and that on the presentation thereof to the board of freeholders the same should have been paid. A peremptory mandamus is allowed, commanding the payment •of the balance unpaid of the relator’s bill, with interest from May 11th, 1885. The relator is also entitled to costs on this rule.