Chemung Canal Bank v. Supervisors of Chemung County

5 Denio 517

• Court: New York Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

Whittlesey, J.

The board of supervisors of a county acquire their powers by statute. These are specific and limited in their character, and cannot be transcended. In auditing and allowing accounts they cannot admit a claim against the county upon any notions of their own of its equity. (People v. Lawrence, 6 Hill, 244.) The powers given them are “ to examine, settle and allow all accounts chargeable against the county, and to direct the raising of such sums as may be necessary to defray the same.” (1 R. S. 366, 7, § 4, subd. 2.) What are to be deemed county charges is declared 1 R. S. 385, § 3. Among them are.“the sums necessarily expended in the support of county poor-houses and of indigent persons whose support is chargeable to the county.” (Subd. 12.) In relation to the support of the county poor, it is made the duty of the superintendents of the poor to present annually to the board of supervisors an estimate of the amount necessary for the support of the county poor for the ensuing year, and the supervisors are to cause such sum as they may deem necessary for that purpose to be raised and paid to the co.unty treasurer, and to be kept by him as a separate fund. (1 R. S. 626, § 50.) The- superintendents of the poor audit all accounts for services relating to the support of the county paupers, and draw directly on the treasurer for the amount of the accounts, they audit, (Laws, of 1832, p. 43, § 1; 1 R. S. 3d ed. p. 795, § 62.) In regard to compensation to jurors, boards of supervisors may direct an allowance to them, in which case they are to raise the necessary sum for the purpose, and the jurors are paid directly by the treasurer on the certificate of the clerk of the court of their attendance. (2 R. S. 643, § 37.) In relation to these two classes of claims, therefore, boards of supervisors have no duty to perform as auditors. Their only duty is to raise money to be placed in the treasury, sufficient to meet their probable amount. The claims held by the plaintiff in November, 1843, at the time of the adjustment with the defendants, were precisely of this character. They were orders on the treasurer given by the superintendents of the poor, and certificates of service given to two or three hundred different jurymen, all of which it was the duty of the treasurer to pay without any further auditing or direction. The plaintiff could call upon him with these evidences of claims against the county, and demand payment from any moneys in his hands raised for the support of the poor, or jurymen’s compensation, as the case might be, and in case of his refusal to pay, might maintain an. action against him upon them. (Ex parte Lynch, 2 Hill, 45.), In the case before us, the treasurer neglected to pay these claims, not because the necessary funds were not raised and placed in his. hands for the purpose, but because he had misapplied them to his own use. The board of supervisors knew the fact, investigated the matter, ascertained the amount of the defalcation of the treasurer, and of the claims held by the plaintiff. These claims were debts agains.t the county, and it was the duty of the board of supervisors to raise funds to discharge: them ; and this having been done once, and the funds lost by the treasurer’s defalcation, it was the duty of the board to restore, them by action against the treasurer and his sureties, and that resource failing, to cause the necessary funds again to be raised. The ground has not been taken, and probably could not be maintained if taken, that the board having once raised the money and placed it in the hands of the treasurer, it could not be responsible for his failure to pay it over. It seems to, have been tacitly conceded that if these claims remained unpaid, provision should have been made by the board for their payment. If this be so, although they are not of the class which the supervisors are to audit, I think it fairly comes within the scope of their powers to recognize their validity, and the liability of the county. There was no necessity of examining, settling, and allowing them: that had been already done by the proper authority, and the plaintiff held the evidences of the allowance. These were conclusive as to the amount, and I cannot perceive that it was transcending the powers limited to the board to collect them together and cancel them, and assume the payment of their amount by resolution in the manner it was done. If I have been so far correct in my views, it was doing no more than the board could have been compelled to do, in substance, by mandamus or suit.

The proper mode by which a board of supervisors renders itself legally liable, is by resolution entered in its minutes. Its clerk is to make entries of all resolutions or decisions on questions concerning the raising or payment of moneys. (1 R. S. 367, § 9.) If a resolution of this character was within the powers of the board to adopt, the treasurer was bound to pay the money mentioned in it, upon production of a certified copy. (People v. Lawrence, supra.) It is understood to be usual, instead of a certified copy of the claim and resolution auditing it to present to the treasurer, for the clerk of the board to draw an order on him for the amount allowed by the resolution. This is, in fact, only certifying the resolution in another and more convenient form. What the clerk of the board usually did in other cases, all the supervisors, as individuals, unite in doing in this case. The order is drawn upon the treasurer, signed by all the supervisors, instead of the single signature of the clerk. This, I apprehend, is mere evidence of what the supervisors did as a body, and it is to be looked upon in no other light. It cannot be considered a bill of exchange, drawn by the board of supervisors as a corporation. If it is to be looked upon in that light, it certainly does not promise for and is not binding upon the corporation. If it is a bill of exchange, the individuals who drew it are alone liable as drawers, the addition of supervisors being mere descriptio persona-rum. (Barker v. Mech. Ins. Co. 3 Wend. 94.) I doubt also, whether a board, of supervisors can be parties to a bill of exchange. It would seem that drawing a bill on time, payable with interest, would in effect be borrowing money without authority of law. (Barker v. Loomis, 6 Hill, 463.) This order cannot therefore be regarded as a bill of exchange. It is rather evidence of the resolution which at the time adjusted the claim between the parties to this suit. It is this act of the board of supervisors which is the true foundation of the action in this case. The resolution is the vital thing; and if that was within the power of the board to pass, it is conclusive of the adjustment of the account, if adopted with knowledge of the proper facts. It certainly worked no injury to any one that three or four hundred small orders, which the county was liable to pay, were condensed into one large one not increasing the county’s liability. The suggestion was not an unnatural one, that time in some way should be allowed for payment of the amount to enable the county to collect it. of the treasurer and his sureties, and not to compel it to raise it by tax.

The defendants, however, go back of the resolution and prove that nearly all the orders held by the bank, which were then given up and cancelled, had been previously paid by the treasurer. This evidence was taken subject to objection, but it wTas clearly admissible in the aspect in which I have examined the case. The vitality of orders once paid by the treasurer was destroyed, and they could not afterwards become a claim in the plaintiff’s hands against the county. But to account for its possession of paid orders, the plain iff shows that its cashier exchanged with the treasurer unpaid orders, which were few in number, for' a large number of small jurors’ certificates and poor-house orders which the treasurer had paid. The transaction, although somewhat singular and perhaps suspicious in its character, would really result in no wrong or injury. For although the bank would hold orders, the vitality of which was destroyed, yet the debt represented by the valid orders exchanged for them, would not have been paid, and that would sustain the settlement made with the board of supervisors in November, 1843. I cannot, from the testimony.in relation to the exchange of the jurors’ certificates, perceive that any wrong was done to the county, or that it gave the treasurer any greater-power to do wrong than if it had not been made. These certificates had not been allowed to him in the adjustment of his accounts and then exchanged for another description of vouchers on which he could obtain an additional allowance for the same amount. The transaction seems to have been a mere exchange of vouchers before any of them had been allowed to him in settlement. This, however, was not the case with the exchange of $800 made in November, 1842. At that time the board of supervisors were about to hold their annual meeting, when the treasurer’s accounts would be examined by them. The bank held unpaid orders on the treasury to the amount of $3000: the treasurer applied to the cashier and obtained from him the $800 worth, as he said, to show before the board, and gave in exchange for them his check, which he took up the next spring with an equal amount of paid poor-house orders. The effect was that the treasurer, in November, 1842, obtained a credit with the county for the amount of the orders as for so much money paid, and as after such credit he was then in arrear to the county $682,42, it necessarily follows that without the orders he would have been found a defaulter to nearly $1500. It is true that the treasurer paid the bank nothing for these orders, and the debt to the bank to that amount remained unextinguished, yet as by the act the bank put it in the treasurer’s power to obtain credit with the supervisors to the amount of the orders, as for so much money paid, it is estopped from asserting afterwards that the debt was hot in point of fact .paid. So far as regards those orders, it must look to the responsibility of the treasurer. This very transaction may have prevented the supervisors from taking such precaution's as Would have ensured them against much loss by the treasurer, as without its aid the defalcation in November, 1842, would have been so considerable as probably to have excited action on the subject. The poor-house orders which were afterwards given to replace the -receipt or check had been paid by the treasurer. And then, after the county funds had been appropriated to their legitimate purpose of paying them, they were transferred to the bank, not for valid existing claims against the county, but ‘for a naked indebtedness of the treasurer himself. To permit such a transaction would be to compel the county to pay the same poor-house orders twice. On such a state of facts the plaintiff could not sustain a claim against the county on either the poor-house orders, the receipt or check given up for them, or the orders originally given for the receipt in November, 1842. Still, under the circumstances, I am inclined to think it was competent for the board of supervisors to adjust all these claims, and if they did adjust them after hearing all the facts, we could not go behind such adjustment. If it was made in ignorance of the material facts, it would be otherwise. The weight of evidence clearly was that the board did not know of the exchanges, and that the committee who conducted the investigation knew only of a few instances of large orders having been exchanged by the bank for small/ones, as a matter of convenience, and nothing of the transaction in November, 1842, although there was some proof on the other side. Yet as it does not appear on what ground the referees made up their report, and as they reported for the plaintiffs the amount of the draft and interest as if it had been commercial papel, and as from the testimony a report under the common counts would probably have been reduced by the amount of the orders delivered the treasurer in November, 1842,1 think the report should be set aside, and a new tria* ordered.

McKíssock, J. concurred.

Beardsley, Ch. J., concurred in the result without expressing an opinion upon the reasons therefor.

Motion granted.