122 A.D. 497 | N.Y. App. Div. | 1907
The following is the opinion delivered at Special Term:
The plaintiff, a taxpayer of the county of Nassau, has brought this action against the three defendants, who composed the board of Supervisors of that county, to recover from them the amount of certain items in the several bills of said defendants for services and disbursements as supervisors, which it is alleged were collusively audited by the said board.
This action is instituted and is sought to be maintained under section 1 of the “ Taxpayers’ Act,” so called, being chapter 581 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887, and chapter 301 of the Laws of 1892, which provides that all officers of any county may be prosecuted and an .action maintained against 'them by a taxpayer to prevent any illegal official act or to prevent waste or injury to,- or to restore and make good any property, funds or estate of such county, and in case the injury complained of consists in any hoard, officer- or agent, by collusion' or otherwise, allowing or paying or conniving at the audit of any fraudulent or illegal demand, the court shall enforce the restitution and recovery thereof if theretofore paid, and “ also may in its discretion, adjudge and declare the colluding or defaulting official personally responsible therefor, and out of his property * * * provide for the collection or repayment thereof.”'
The complaint sets forth three causes of action, one -for an illegal
The words of the act are “ by collusion * * * allowing or paying or conniving at the * * * audit * * * of any fraudulent, illegal * * * demands.” The Court of Appeals has declared that the word “ collusion ” means “ fraudulently concerted,” as defined by lexicographers. Another definition is “ an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.” (1 Bouvier Law Dict. [Rawle’s Rev.] 352.)
There is, therefore, involved in and necessarily implied by the term “ collusion,” a concerted or agreed purpose to commit a fraud or accomplish a wrong. It is not enough that the claim is illegal, but the auditing of it must also have been “ fraudulently concerted ” or done by collusion in order that the court “may in its discretion adjudge and declare the colluding * * official personally responsible therefor.”
Having regard to all of the evidence and the admitted facts in this case, I am unable to find that the defendants, in auditing their
As to the illegality of the several claims of the defendants, so much thereof as relates to mileage for. attendance at regular meet- ’ ings of the board in excess of once going and returning, and to per diem services and expenses for “ committee work” are not sustainable in law. ‘
The “ County Law” provides (§ 23
The “ County Law ” also provides
Important and valuable services seem to have been rendered by these defendants respectively to the people of the county, during the period covered by their bills, and a large amount of money has been expended by each in actual expenses incurred therein, but the minutes of the board are barren of evidence that a single matter of investigation or other duty was committed to any of them “ lawfully ” or otherwise. It is contemplated by the law that boards of supervisors shall keep books of record of their proceedings. By section 50 of the “ County Law” it is made the duty of their clerk to “ record in books provided for the purpose all the proceedings of such board.” This is for public information and for á source of authentic evidence as well. The record alone can show that a matter of special duty has been “ lawfully committed ” to a supervisor. It appears in the case by oral testimony that the service of each supervisor in such matters, called by them “ committee work,” was done in pursuance of a general understanding that each supervisor should look after the roads and other business in his own town, and report from time to time to the board, and such course was undoubtedly and' in good faith pursued. But this course was not within the letter, or even the spirit of the law, and their charges for such “ committee work ” were not properly made or allowed.
It will be unfortunate for the defendants if this conclusion shall operate to deprive them of compensation for services rendered in good faith to the people of the county, but it is of the highest importance, and quite essential for the protection and promotion of the public interest, that at least substantial compliance with the forms and requirements of the law shall be had. I am unable to assent to the proposition of the learned counsel for the defendants, in its application to the facts of this case, that what the board had the power to authorize in the first instance it could ratify after the service was rendered, and that the audit of a bill for services actually rendered and expenses actually paid in matters relating to the county, and which were within the general supervision of the joint board, was equivalent to original authority. ,
I have dealt with the questions as to the legality of the charges in the defendants’ bills referred to, not because their determination
The learned counsel for the plaintiff presents the proposition that if the court shall conclude that the plaintiff is not entitled to recover as against all of the defendants, yet a judgment may be had against them severally for the moneys illegally received by each. Such is not the nature of the action, for, as has been pointed out, the action is based upon the alleged collusion or fraudulent concert of the defendants acting conjointly as auditors, and not to recover from each defendant moneys illegally received by him from the county.
For" the foregoing reasons I am constrained to the conclusion that there must be judgment for the defendants dismissing the plaintiff’s complaint upon the merits, with costs.
See Laws of 1892, chap. 686, § 28, as amd. by Laws of 1895, chap. 480, and Laws of 1900, chap. 529. Since amd. by Laws of 1905, chap. 20, and Laws of 1907, chap. 482.— [Rep.
See § 23, as amd. supra.— [Rep.