By the Court.*-—-Allen, J.
By section 6, of the tax law of 1860 (ch. 509, p. 1024 of Session Laws), a duty was imposed upon the Board of Supervisors of the county of Hew York, to cause to be raised and collected during the current year, and in the manner in which the other taxes are levied and collected within the city and county, a sum not exceeding eighty thousand dollars, to pay such sum as may be found due to the contractors with the Commissioners of Records appointed by the act of 1855 (Sess. Laws, 763). The act is imperative, leaving no [121]*121discretion in the defendants whether they will exercise the authority conferred.
Although the language of the act is simply enabling, yet as it confers a power which concerns the public, as well as individuals, it is not merely permissive, but is mandatory. (Rex a. Barbour, 2 Salk., 609 ; 1 Kent's Com., 467; Newburg Turnpike Co. a. Miller, 1 Johns. Ch., 113.)
The only discretion vested in the supervisors is, as to the amount within the prescribed limits which they will cause to be levied and collected upon the taxable property of the county for the purposes named, and that is not an arbitrary discretion, although in its exercise their determination would not be the subject of review.
As public officers they are required to exercise their best judgment as to the amount which will probably be necessary to pay the claims intended to be provided for, leaving it for other officers or tribunals to decide the ulterior question, whether, by law, the contractors named in the act be entitled to recover any part of it.
The object of the Legislature was to provide a fund for the alleged claim when the amount should be judicially determined. Whether it was wise or necessary to make provision for collecting from the taxpayers, and placing in the custody of the financial agents of the city and county, a fund for the payment of a contested claim in advance of its adjustment, is not for us to decide.
It is enough that the Legislature, in the exercise of its taxing powers, directed it to be done. Conceding the act of 1855 to be unconstitutional, and all contracts under it to be invalid, it does not follow that the Legislature might not, adjudging the services to be performed under the act to be valuable to the county, direct their payment absolutely, and cause a tax'to be levied for that purpose. (Town of Guilford a. Supervisors of Chenango County, 3 Kern., 143.)
They have, however, only directed an amount to be levied and collected, by way of. making provision for the payment of the claim when the amount shall be “judicially” determined.
The constitutionality of the law of 1855, or the validity of the acts of the commissioners under it, are not before us. We do not undertake to decide, and cannot upon this appeal decide, [122]*122whether any sum whatever, and if any, what amount, is due or should be paid to the claimants; and these questions cannot be determined by the Board of Supervisors, for the reason that the Legislature has referred them for decision to another tribunal.
For the purpose of their own action, the supervisors could adjudge what sum would probably be required on the contingency that the claim should be declared valid.
It is not claimed that the amount required by the order appealed from to be raised, is unreasonable, or larger than should be raised, if any action is taken under the section.
On the contrary, it is impliedly, if not expressly conceded, that in the exercise of a sound discretion, this amount, if any thing, should be raised.
In the affidavit of the president of the board, read upon showing cause against the order, it is not claimed that there is any dispute or doubt as to the amount which will be necessary to pay the claim, if the claimants shall be adjudged entitled to any thing. The objection is rather to the validity of the act of 1855, and to the power of the agents of the county to incur expenses chargeable upon the county when there is no appropriation in the treasury to pay them.
It is true, that it is stated in the affidavit that the board has no means of ascertaining whether the expenses had been incurred, or the amount of such expenses, other than the certificate of the commissioners.
This, however, is the evidence contemplated by the act of 1855, and unimpeached, is, prima facie, sufficient to authorize the action of the supervisors. It is not pretended that the supervisors were delaying action for the want of more definite or reliable information. The counsel for the appellants does not, in his printed points, object that the order should not have named the amount, but simply directed the defendants to raise such sum as they should judge to be necessary.
Perhaps the mandamus might have been in that form, had it been suggested that the supervisors questioned the amount,.and desired to pass upon it.
But the contest is, really, as to the duty of the supervisors to act at all, rather than as to what sum they shall raise ; and as they are not to judge upon the validity of the claim, they are [123]*123not at liberty to refuse to name the amount which will probably be necessary, if the claim is valid, to satisfy it. It is claimed that the application is premature, and that there has been no neglect or refusal by the defendants to justify the mandamus.
If this were so, it would best promote public interests to pass upon the merits of the controversy, rather than dispose of the matter upon technical objections, which would only lead to a renewal of the application, and another process of litigation, during which the assessment levy of the annual tax must be suspended, and possibly to the great detriment of the county. But without imputing any criminal or intentional neglect of duty on the part of the defendants, I, think the case shows a palpable mistake on their part as to their duty, and a delay and omission to act sufficient to authorize the order of the court to put them in motion. The delay evidently arises from a misconstruction of the act, and of their duty under it, and was not a delay merely because a proper time for action had not arrived. They had not acted, simply because they did not consider themselves bound to act.
And it must be borne in mind, that the provision sought to be enforced, is only operative for the current year, it being a part of the act providing for the annual tax-levy upon the county ; and that the whole county tax authorized by the act must be levied in a single assessment; and that if this tax is omitted in the tax-levy for the year, and the annual assessment and tax-roll completed without it, the parties interested are remediless. Again, there is no mode of compelling an immediate compliance with, or a direct denial of, any request or demand upon the supervisors as a body. Hence their refusal to do a particular act, if they do not choose to come to a direct vote, and to which they cannot be brought by any individual, must be determined by their acts, and omissions to act. An individual is not called upon to await a formal vote, to which they may never come, when by so waiting the time and opportunity for action may be lost; as in this case, the residue of the tax for the year may be assessed and collected, and this omitted by the inaction of the supervisors.
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By the Court.*-—-Allen, J.
By section 6, of the tax law of 1860 (ch. 509, p. 1024 of Session Laws), a duty was imposed upon the Board of Supervisors of the county of Hew York, to cause to be raised and collected during the current year, and in the manner in which the other taxes are levied and collected within the city and county, a sum not exceeding eighty thousand dollars, to pay such sum as may be found due to the contractors with the Commissioners of Records appointed by the act of 1855 (Sess. Laws, 763). The act is imperative, leaving no [121]*121discretion in the defendants whether they will exercise the authority conferred.
Although the language of the act is simply enabling, yet as it confers a power which concerns the public, as well as individuals, it is not merely permissive, but is mandatory. (Rex a. Barbour, 2 Salk., 609 ; 1 Kent's Com., 467; Newburg Turnpike Co. a. Miller, 1 Johns. Ch., 113.)
The only discretion vested in the supervisors is, as to the amount within the prescribed limits which they will cause to be levied and collected upon the taxable property of the county for the purposes named, and that is not an arbitrary discretion, although in its exercise their determination would not be the subject of review.
As public officers they are required to exercise their best judgment as to the amount which will probably be necessary to pay the claims intended to be provided for, leaving it for other officers or tribunals to decide the ulterior question, whether, by law, the contractors named in the act be entitled to recover any part of it.
The object of the Legislature was to provide a fund for the alleged claim when the amount should be judicially determined. Whether it was wise or necessary to make provision for collecting from the taxpayers, and placing in the custody of the financial agents of the city and county, a fund for the payment of a contested claim in advance of its adjustment, is not for us to decide.
It is enough that the Legislature, in the exercise of its taxing powers, directed it to be done. Conceding the act of 1855 to be unconstitutional, and all contracts under it to be invalid, it does not follow that the Legislature might not, adjudging the services to be performed under the act to be valuable to the county, direct their payment absolutely, and cause a tax'to be levied for that purpose. (Town of Guilford a. Supervisors of Chenango County, 3 Kern., 143.)
They have, however, only directed an amount to be levied and collected, by way of. making provision for the payment of the claim when the amount shall be “judicially” determined.
The constitutionality of the law of 1855, or the validity of the acts of the commissioners under it, are not before us. We do not undertake to decide, and cannot upon this appeal decide, [122]*122whether any sum whatever, and if any, what amount, is due or should be paid to the claimants; and these questions cannot be determined by the Board of Supervisors, for the reason that the Legislature has referred them for decision to another tribunal.
For the purpose of their own action, the supervisors could adjudge what sum would probably be required on the contingency that the claim should be declared valid.
It is not claimed that the amount required by the order appealed from to be raised, is unreasonable, or larger than should be raised, if any action is taken under the section.
On the contrary, it is impliedly, if not expressly conceded, that in the exercise of a sound discretion, this amount, if any thing, should be raised.
In the affidavit of the president of the board, read upon showing cause against the order, it is not claimed that there is any dispute or doubt as to the amount which will be necessary to pay the claim, if the claimants shall be adjudged entitled to any thing. The objection is rather to the validity of the act of 1855, and to the power of the agents of the county to incur expenses chargeable upon the county when there is no appropriation in the treasury to pay them.
It is true, that it is stated in the affidavit that the board has no means of ascertaining whether the expenses had been incurred, or the amount of such expenses, other than the certificate of the commissioners.
This, however, is the evidence contemplated by the act of 1855, and unimpeached, is, prima facie, sufficient to authorize the action of the supervisors. It is not pretended that the supervisors were delaying action for the want of more definite or reliable information. The counsel for the appellants does not, in his printed points, object that the order should not have named the amount, but simply directed the defendants to raise such sum as they should judge to be necessary.
Perhaps the mandamus might have been in that form, had it been suggested that the supervisors questioned the amount,.and desired to pass upon it.
But the contest is, really, as to the duty of the supervisors to act at all, rather than as to what sum they shall raise ; and as they are not to judge upon the validity of the claim, they are [123]*123not at liberty to refuse to name the amount which will probably be necessary, if the claim is valid, to satisfy it. It is claimed that the application is premature, and that there has been no neglect or refusal by the defendants to justify the mandamus.
If this were so, it would best promote public interests to pass upon the merits of the controversy, rather than dispose of the matter upon technical objections, which would only lead to a renewal of the application, and another process of litigation, during which the assessment levy of the annual tax must be suspended, and possibly to the great detriment of the county. But without imputing any criminal or intentional neglect of duty on the part of the defendants, I, think the case shows a palpable mistake on their part as to their duty, and a delay and omission to act sufficient to authorize the order of the court to put them in motion. The delay evidently arises from a misconstruction of the act, and of their duty under it, and was not a delay merely because a proper time for action had not arrived. They had not acted, simply because they did not consider themselves bound to act.
And it must be borne in mind, that the provision sought to be enforced, is only operative for the current year, it being a part of the act providing for the annual tax-levy upon the county ; and that the whole county tax authorized by the act must be levied in a single assessment; and that if this tax is omitted in the tax-levy for the year, and the annual assessment and tax-roll completed without it, the parties interested are remediless. Again, there is no mode of compelling an immediate compliance with, or a direct denial of, any request or demand upon the supervisors as a body. Hence their refusal to do a particular act, if they do not choose to come to a direct vote, and to which they cannot be brought by any individual, must be determined by their acts, and omissions to act. An individual is not called upon to await a formal vote, to which they may never come, when by so waiting the time and opportunity for action may be lost; as in this case, the residue of the tax for the year may be assessed and collected, and this omitted by the inaction of the supervisors. I am of opinion, that without imputing any bad faith to the supervisors, or any intention to disregard or evade the law, the circumstances justified the application.
[124]*124The certificates and vouchers were prepared about May 22, 1860, and at a meeting of the board on that day, were referred to the committee op civil courts.
On the 10th of July, that committee reported that it was inexpedient to raise the sum claimed, because the matter had not been judicially determined; and on the 17th of July, the report was recommitted to the same committee, but for what purpose does not appear. It was evidently, however, not merely to ascertain the amount, or probable amount, of the claims.
On the 7th of August, after the issue of the first order on their proceedings, the board had a meeting, and took no action in the premises. I think the relators were entitled to more.
It is also objected that the order should have been for an alternative, rather than a peremptory mandamus.
But this was a case calling for prompt action in view of the public interests, as the tax-levy for the year was awaiting the decision. There was no dispute about facts, and it was a proper case for the court, in the exercise of a sound discretion, to make the writ peremptory in the first instance, the parties having been fully heard upon the merits. (People a. Judges of Cayuga County, 2 Johns. Ch., 68 ; Exp. Rogers, 7 Cow., 526.)
There was no reason for subjecting the parties to the delay incident to a formal procedure.
It is proper to, say that we have only to do with the first clause of the section, which relates to the action of the Board of Supervisors. With the other clause, which concerns the comptroller and the final disposition of the fund, we have nothing to do. Should we undertake to give a construction to the whole section, and declare the duty of the comptroller, we should go beyond our jurisdiction, and our declaration would be inoperative. There may well be a diversity of opinion as to the true construction of the last clause of the section; but it can only be settled when the money shall be in the treasury, and the comptroller shall be called upon to act. Perhaps by that time an explanatory act will have been passed, which, if prepared with more care and greater skill than this, and with more regard to precision in the use of words, will relieve the comptroller, as well as the courts, from the necessity of spelling [125]*125out the legislative intention, which is always difficult to do from acts unartificially drawn.
The order should be affirmed, without costs.
Sutherland, P. J.—Concurs.
Bonney, J.
I concur with a majority of the court in opinion that the act of April 17,1860, imposes upon the supervisors the duty of raising and collecting not exceeding $80,000, to pay whatever sum may be found due to the contractors, with the Commissioners of Records, and that the constitutionality of the act for the appointment of said commissioners, passed April 18, 1855, cannot on this application be questioned.
But to authorize the interference of this court by writ of mandamus, as I understand the law, the relators must show a demand or request to perform the imposed duty, and a refusal by the supervisors to comply therewith, either by express words, or by such words and acts as satisfy the court that for some insufficient reason compliance is withheld, and a determination evinced not to do what is required. I think the papers in this matter show a sufficient request, but I am not satisfied with the evidence of refusal. (See Tapping’s Mandamus, 282, &c., and cases cited.)
Again, the act of April, 1860, section 6, as I construe it, vests in the supervisors, and not in this court, the power to determine in advance, what amount, not exceeding eighty thousand dollars, will be sufficient to pay the sums which “ may be found dud" to said contractors ; and, consequently, in my opinion, the mandamus (if granted) should command the supervisors to perform the duty required of them, and raise such amount as they shall determine to be sufficient for the purpose specified.