The People, ex rel. Curry, vs. Green and others, constituting the Board of Apportionment and Audit of the city and county of New York

The People, ex rel. Curry, vs. Green and others, constituting the Board of Apportionment and Audit of the city and county of New York. Persons summoned to attend a circuit court, or court of oyer and terminer, as marshals or constables, under the provisions of the Revised Statutes, (2 S. S. 300, §§ 83, 84, JEdm. ed.,) are, pro hoc vice, constables for the purpose for which they are called, and are so constituted by virtue of the statute and the power conferred upon the sheriff to summon them. To entitle them to their fees, it is enough that they are summoned and attending, ready to perform their duties as constables. The act of 1870, (Laws of 1870, ch. 382, § 9,) conferring upon the comptroller the power to appoint the attendants on the several courts in the city and county of New York, except police and district courts, does not affect- the question of the right to fees for attendance. The attendants referred to in the act of 1870 are permanently attached to the court, to serve in such departments thereof as may be designated by the court, and are not summoned'or selected as constables. The power conferred on the sheriff by the Revised Statutes should be construed in reference to the act of 1870, so as to authorize the summoning of persons in addition to such regular attendants, when the court so orders, or the emergency, in the judgment of the sheriff, requires it. The auditing and allowance of a claim against the county of New York, by the board of supervisors, is not conclusive upon the board of apportionment and audit, whose duty it is to audit, under the law creating them. A provision, in an order for the issuing of a mandamus, requiring the board of apportionment and audit to audit a claim for the sum determined upon or allowed by the board of supervisors, cannot be sustained. The duty of the board of audit and apportionment, in respect to the amomd to be allowed upon a claim for fees as constable, in attending the courts, is rendered plain by referring to the statutes, (Laws of 1866, ch. 69, § 8; Laws of 1869, ch. 820, § 8,) fixing the compensation for such attendance, when the number of days which the claimant attended court is ascertained and settled by them. PPEAL, by the defendants, from an order made at a Special Term, directing that a peremptory writ of mandamus issue against them forthwith, to compel the audit and allowance, of the claim of the relator, for services in attending the court of oyer and terminer, at sundry times in 1871, pursuant to a summons of the sheriff, at the sum of $321. The affidavit of the relator set forth that he was then a deputy sheriff ; that he was summoned by the sheriff to attend the court of oyer and terminer at the days and times mentioned, in 1871. That he did so attend, and that his bills for such service, amounting, to the aggregate sum of $321, have been approved and directed to be paid by the board of supervisors. In defence against the claim, the respondents urge: First. That the said relator was not a marshal or constable of the city or county of New York, and therefore could not be lawfully summoned to attend the court. Second. That by section 9 of chapter 382, laws of 1870, the comptroller is vested with the exclusive power to employ attendants for all the courts in the city and county of New York, and the sheriff, therefore, had no power to summon the relator. Third. That the allowance of the relator’s claim by the board of supervisors is not conclusive upon the board of apportionment. The court at Special Term granted the relator’s motion, and directed the writ to issue to compel the audit and allowance of the claim at the sum named in the relator’s affidavit, as allowed by the board of supervisors. E. Delafield Smith, for the appellants. I. The Revised Statutes, (§ 84, art. 3, ch. 12, tit. 3, part 3, vol. 2, p. 300, Edm. ed.,) under which the relator claims to have been employed, provide that it shall be the duty of the sheriff to summon marshals or constables of his county to attend upon any circuit Court, &c., held in his county. The sheriff is not empowered to summon any person other than a marshal or constable ; therefore his power is limited to the summoning of such officers, and no persons, except marshals or constables, are qualified and competent, under the law, to be so summoned. In the case in 4 Cowen, 146, relied upon by the relator to establish that the person so summoned need not be a marshal or constable, it appears by the head-note and context, that the relator in that case was a constable, summoned to attend the court as a constable; that he was also a deputy sheriff, and appeared at the court in the performance of duty as a deputy sheriff. The court awarded him his compensation, deciding, that the fact that he was a deputy sheriff did not prevent the receipt of the money earned as constable. The question raised by the return in the case was, whether the relator, being a constable, and also a deputy sheriff, could recover for his attendance when, although summoned by the sheriff, he performed no duties as constable, and was .not required to perform any, and was necessarily in attendance as deputy sheriff. The question raised in the case at bar is, whether a person, other than a marshal or constable, can recover for attendance. In this case the relator appears to be only a deputy sheriff. It is admitted that he was not a constable or marshal. II. The provision of the statute, (Laws of 1870, ch. 382, § 9,) is conclusive against the relator’s claim. That act provides, that “attendants on the several courts in the city and county of Hew York, except police and district court officers, shall be appointed and removed, and their compensation fixed, by the comptroller, but shall not be greater in number than at present.’ ’ By this statute, which is a special and particular statute, relating only to the county of Hew York, the general provision of the Revised Statutes relating to all the courts in the State is amended and repealed, so far as the county of Hew York is concerned. The power conferred upon the comptroller to appoint attendants on all the courts held in the city and county of Hew York, is in its nature exclusive, and as to those courts, necessarily deprives the sheriff of Ms power to summon attendants under the Revised Statutes. Therefore, the summons of the sheriff conferred no legal employment upon the relator, and created no obligation on the part of the county to pay for his attendance. III. The audit and allowance of the claim of the relator by the board of supervisors does not preclude the board of audit and apportionment from examining the claim upon the merits; nor is such allowance conclusive on the last named board in respect to the sum to be allowed. The order appealed from is therefore erroneous, in directing a writ to issue commanding the respondents to audit and allow the relator’s claim at a sum therein named. If the relator be entitled to compensation, for his alleged services as attendant, the only relief that he is entitled to, in this proceeding, is a writ commanding the board to proceed to audit and allow his claim, at such sum as they shall find he is justly and lawfully entitled to receive therefor. 1. The statute (Laws of 1872, ch. 9) which creates the board of audit and apportionment, clothes them with a discretion in auditing and allowing the claims brought before them. The language of the statute imports the exercise of judicial power by them ; they are to audit and allow by the concurrent vote of all the members of the board. If the amount of a claim be fixed by a statute, or if the amount of a claim be fixed by a valid contract, it would be the duty of the board to allow the claim at the amount fixed by such statute or contract. But in this case the amount due the relator is fixed by no contract or statute. The statute fixes the amount of his salary per diem, but whether the relator was summoned by the sheriff, how many days he has served, and what amount has thus accrued and become due to him, are proper subjects of investigation by the board of audit. Clearly, in this case, it is the duty of the board to ascertain these facts by competent testimony, and to allow only such sum as they find to have thus become due to the relator. 2. It is true that the allowance of a claim by a board of supervisors acting within their jurisdiction, when the subject matter thereof is a legal charge against the county, is conclusive upon the county treasurer, and he is bound to pay in accordance with such allowance, from the proper appropriation. But the board of audit, the respondent herein, does not bear the same relation to the board of supervisors as the county treasurer. The treasurer is a mere ministerial officer, having the custody of the funds of the county, and bound to disburse them as the supervisors shall lawfully direct. But the board of audit is clothed with other and different functions and powers. It is not the custodian of the funds of the county; it has the judicial power to audit and allow certain claims arising in 1871, and upon such audit and allowance the comptroller is directed to pay from the fund provided by the act. (Laws of 1872, ch. 9, § 2.) Therefore, in respect to the claim of the relator, and all similar claims arising in 1871, the functions of the board of supervisors, as to the audit and allowance thereof, are superseded, and the power to audit and allow is vested in the board of audit and apportionment. 3. The board of supervisors, in 1871, directed the payment of divers sums, amounting in the aggregate to $321, to the relator for his alleged services; but that direction could not be enforced, because there was no money out of which payment could be made, the appropriations having been exhausted. The direction to pay was therefore ineffectual and nugatory. For the relief of the relator and others similarly situated, the statute, chapter 9 of laws of 1872, was enacted, providing for the payment of claims remaining unpaid for supplies and materials furnished in that year. The statute creates a new tribunal to which such claims are to be submitted, and provides that such claims shall be paid only upon audit and allowance by the board thus created; and the relator, seeking the judgment of the new tribunal thus created, must submit his claim to its examination for audit and allowance upon the merits thereof. If the relator had relied upon the allowance by the board of supervisors, he might argue that such allowance is conclusive in a proceeding to compel the county treasurer to pay, or in any other proceeding to enforce that allowance. But by asking a new judgment before a new tribunal, he abandons the former judgment, and now subjects himself to the conditions and requirements upon which the judgment of the new tribunal is conditioned. The intent of the legislature, that such claims should be examined upon the merits, notwithstanding any former allowance by the board of supervisors, is clearly evinced in the statute. If it is intended that audit and allowance by the board of supervisors should preclude examination by the board of audit, then the statute would have provided directly that the comptroller should pay claims against the county in accordance with the audit thereof by the board of supervisors. If the board of audit cannot examine the claim of the relator on its merits, then it has no function whatever to perform in respect to this class of claims, and the legislature has prescribed an absurd and idle formality, when it directed that such claims should be audited and allowed by the concurrence of all the members of the board. The relator, in asking the court to compel the board to allow the claim as fixed by the resolution of the board of supervisors, without examination on the merits, is seeking to compel them to allow a claim, which they have not audited, and asks the court to compel them to violate the law by omitting to audit or examine a claim previous to allowing the same. If the board should allow the claim without having audited it, they would omit a duty which the statute makes obligatory on them. The court will not compel them thus to violate the law defining their duties. (The People v. Green, Gen. T., Dec., 1872.) D. G. Dean, for the relator. . I. The summons of the relator by the sheriff, and his attendance in obedience thereto upon the court of oyer and terminer, and the action of the board of supervisors thereupon, conclusively establish his claims as “legal county charges. ’ ’ (Supervisors of Onondaga v. Briggs, 2 Denio, 26. The People v. Stout, 23 Barb. 338, 339. 2 Laws of 1857, § 6.) II. The audit and allowance of accounts against the county by the board of supervisors, who had authority to make such audit and allowance, is a judicial determination, conclusive upon themselves and upon their successors. (Supervisors of Chenango v. Birdsall, 4 Wend. 453. Supervisors of Onondaga v. Briggs, 2 Denio, 26, 39. The People v. Supervisors of Schenectady, 35 Barb. 408. The People v. Stout, 23 id. 344. The People v. Ames, 19 How. Pr. 551. Huff v. Knapp, 1 Seld. 65. The People v. Champion, 16 John. 61. The People v. Collins, 19 Wend. 56.) III. The effect of the act of January 30,1872, is merely to make the board of apportionment and audit successor to the old board of supervisors so far as the claims therein referred to are concerned. The audit and allowance by the board of supervisors is as binding upon the board of apportionment and audit as the audit and allowance by the board of supervisors would be upon a board subsequently elected ; it was not meant that where a claim had been regularly audited, examined and allowed, and thus became a legal debt of the county, the board of apportionment and audit should also go through with the formality of a re-audit. (The People v. Norton, 12 Abb. Pr., N. S., 64. The People v. Haws, 12 Abb. Pr. 192.) In the latter case the court decided that under the provisions of section 6 of the act of 1857, entitled “An act relating to the board of supervisors, &c., of blew York,” (2 Laws of 1857, ch. 590, p. 285,) the comptroller has no power to examine and allow county charges which had been already examined and allowed by the board of supervisors, but his power in that respect is limited to the examination of the vouchers. Semble. The board of apportionment and audit has no such power and is likewise limited. In this case the board of apportionment and audit having succeeded to the powers of. the board of supervisors in respect to the audit and allowance of claims of this character, they are just as much bound by the action of the supervisors of 1871 as the supervisors of 1872 would be if they retained power over such claims; and no re-audit is proper or necessary. (The People v. Norton, 12 Abb. N. S. 66.) In that case .the court house commissioners occupied relatively the same position to the board of supervisors as does the board of apportionment and audit in this. There the claim of Cornell had been “audited and allowed” by the board of supervisors.and found to be a legal county charge, and the comptroller directed to pay it just as in this case. Before its payment in full, however, the legislature created the new board of commissioners, and delegated to them all the powers theretofore existing with the board of supervisors, including the power to audit and allow claims for the construction of the court house. Upon the motion for peremptory mandamus, the commissioners interposed, “that the claim had not been submitted to them for audit and allowance.” Judge Sutherland held, “The bill of the relator having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and pronounced correct by the auditor, and paid in part by the comptroller, I do not think the relator was called upon or bound to present it or the balance due on it to the commissioners, for a re-auditing by them.” IV. Even had the board of apportionment and audit the power to re-audit, they would be compelled to reach the same results as did the board of supervisors. As the action of the latter board was a judicial determination of the fact that the relator’s claims were “legal county charges, ’ ’ and was conclusive upon them and their successors. Inferior jurisdictions, such as boards of supervisors, which derive their powers from statute, have no power or authority to review, reverse and annul their own judicial action when it has once been legally exercised. (Moses on Mandamus, 125.) When a board of supervisors have, by a legal quorum of their members, voted upon a resolution, and such vote has been entered by their clerk in the book of records required to be kept by them, they have exhausted their discretion over that subject, and have thereby executed a judicial act which is in effect a judgment final and conclusive as to any power they can exercise over it by way of review or reversal. (The People v. Supervisors of Schenectady, 35 Barb. 408.) • Y. The act of January 30, 1872, creating the board of apportionment and audit, provides in its second section that, “The said comptroller is hereby authorized and required to make payment of the claims remaining unpaid for salaries and wages of employees of the various departments of the city and county of New York, for the year 1871, as the said salaries, wages, &c., shall be audited and allowed by the concurrent vote of all the members of said board of apportionment and audit.” The powers of the board under this act, like those of the board of supervisors, are both judicial and ministerial—the latter consequent upon the former; the one expressed by the term audit, the other by the word allow. The judicial function has been exercised finally by the board of supervisors, the ministerial remains to be exercised. As the board of supervisors have no further power, its successor, the board of apportionment and audit, must exercise it. “The board of supervisors act judicially in auditing and allowing accounts for county charges; upon being allowed, the county treasurer is to pay them. If the supervisors refuse to do their duty, or if they act improperly in such matters, the appropriate remedy is by writ of mandamus. So, if the county treasurer should improperly refuse to pay upon the allowance or order of supervisors, the like remedy may be had against him.” (Huff v. Knapp, 1 Seld. 67.) So far has the law considered that the action in this respect of a board of supervisors is binding upon its successors, that the courts have uniformly held that “if a writ of mandamus is granted against a board of supervisors, and their term of office expires, it will devolve upon their successors to obey the writ.” (The People v. Champion, supra. The People v. Collins, supra.) And in the case of the Supervisors of Chenango v. Birdsall, (4 Wend. 460,) the court, upon the subject, says: .“The idea that one board of supervisors may adjudge the matter passed upon by a former board is not to be tolerated.” “When boards of supervisors exercise both ministerial and judicial functions, and they have gone forward and performed the judicial act, and the result of such act raises an obligation upon them to perform a ministerial act which they refuse to perform, a mandamus is the proper remedy to compel performance on their part.” (Moses on Mandamus, 125.) VI. The act of January 30, 1872, provides a method for payment of the relator’s claims, which renders the action of the board of apportionment thereupon his right, and therefore said board should be compelled to take such action as will entitle him to its benefits. VII. The claims of the relator were properly legal county charges, as reference to the statutes will clearly demonstrate, and hence they were properly submitted to the board of supervisors for audit and allowance. The Revised Statutes, (1 R. S. 367,) authorize “ the board of supervisors of each county to examine, settle and allow all accounts chargeable against such county.” 1 Revised Statutes, 385, provides what shall be deemed county charges, and among others “the compensation allowed by law to constables.” 1 Revised Statutes, 386, provides that “accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them.” VIII. The relator has no remedy by action, and therefore his proper remedy is by mandamus. . “ Claims denominated county charges are not allowed to be sued for, because another mode is pointed out for having them adjusted and paid. This is an imperative direction.” (Huff v. Knapp, 1 Seld. 67.) “No action for the recovery of a county charge can be maintained against a county or the board of supervisors. Such a claim must be presented to the board of supervisors, who are empowered to settle it, and who act in the exercise of this power as a judicial body.” (Brady v. The Sups. of N. Y., 10 N. Y. 260. Chase v. County of Saratoga, 33 Barb. 603. S. C., 2 Sandf. 460. Boyce v. Sups. of Cayuga, 30 Barb. 294. Hull v. Knapp, Supra.) Where a particular method of raising money for local public purposes is prescribed by statute, the party entitled to receive it has a right to the full and perfect execution of the power conferred, which may be enforced by mandamus. (The People v. Mead, 34 N. Y. 123.) When a claim is presented to the supervisors of the county, of such a character that it is their duty to proceed and act upon it, and they neither allow nor disallow it by any formal action, their conduct is equivalent to the rejection of the claim, and if their refusal to allow or disallow proceeds from the opinion that the claim is not a legal one, and in the opinion of the court it is one which the county is legally bound to pay, they will be ordered to allow it. (The People v. Sups. of Richmond Co., 20 N. Y. 2532 The People v. Sups. of Delaware Co., 45 N. Y. 200.) When the commissioners of a county refuse to allow a claim for services as a county charge, if, in fact, it be a legal charge, the proper court may instruct and guide.the commissioners in the execution of their duty by a writ of mandamus. (Hull v. Sups., 19 John. 259. Bright v. Sups. of Chenango, 18 id. 242. The People v. Sups. of Delaware Co., Supra.) The 9th section of the act of April 26, 1870, can have no relation to the officers attendant upon the oyer and terminer, in obedience to the summons of the sheriff. Such attendants are summoned as conservators of the peace, to serve process, and have custody of prisoners, if need be, and their duties are entirely foreign to any powers conferred by the legislature upon the comptroller. [MAJORITY — By the Court, Beady, J.] By the Court, Beady, J. The relator was summoned by the sheriff to attend the court of oyer and terminer, under the provisions of the Revised Statutes, (Vol. 2, p. 300, §§ 83, 84, Edm. ed.,) by which it is declared to be the duty of the sheriff of each county in the State, within a reasonable time before the sitting of any circuit court, or court of oyer and terminer, to summon personally so many marshals or constables as he .may have been directed to summon by the court, or the presiding judge thereof, or he may in the absence of such direction deem to be necessary, to appear and attend upon the court during its sitting. And it is further provided, (§ 85,) that every marshal or constable so summoned shall attend the court, upon pain of being fined, for every day’s neglect, a sum not exceeding $5. The persons summoned are, pro hae vice, constables for the purpose for which they are called, and are so constituted by virtue of the statute and the power conferred upon the sheriff to summon them. It is enough that they are summoned and attending, ready to perform their duties as constables. (The People v. Sups. of Columbia, 4 Cowen, 146; The People v. same defendants, id. note.) The act of 1870, (Laws, chap. 382, § 9,) conferring the power of appointment upon the comptroller, of the attendants on the several courts in the city and county of Hew York, except police and district courts, does not affect the question. The attendants referred to are permanently attached to the court, to serve in such departments thereof as may be designated by the court, and are not summoned or selected as constables. But if it were otherwise, the power conferred on the sheriff by the Revised Statutes (supra) should be construed in reference to the act of 1870 (supra) so as to authorize the summoning of persons in addition to such regular attendants, when the court so orders, or the emergency, in the judgment of the sheriff, requires it. To this extent, the order made at the Special Term is correct, and should be affirmed. But the learned justice there presiding, held that the audit and allowance by the board of supervisors were conclusive' upon the respondents, and that it was their duty to so regard them, and to audit and allow the demand at the sum so allowed by the supervisors. This was error. This court, at General Term, has recently decided otherwise. We have held that the action of the supervisors is not conclusive upon the respondents, whose duty it is to audit, under the law creating them. (The People v. Green) The provision in the -order made, requiring the respondents to audit the claim of the relator for the sum determined upon or allowed by the board of supervisors cannot be sustained, for the reasons assigned, and the order must be modified so as to require the respondents to audit the relator’s claim. The duty of the respondents, as to the amount, is rendered plain by the provisions of the statute as to the compensation to be allowed the relator, when the number of days which he attended court is ascertained and settled by them. It is $2 for each day. (Laws of 1866, chap. 692, § 8; Laws of 1869, chap. 820, § 8.) [First Department, General Term, at New York, January 6, 1873. Ingraham, Brady and Learned, Justices.] Ordered accordingly. Ante, p. 162.