By the Court, E. Darwin Smith, J.
The duty of the defendants, so far as they have funds in hand, or available for that purpose, to provide for the maintenance and support of the persons named in the exhibit or schedule annexed to the writ of mandamus in this action, is not denied. The defendants say they have no funds in hand; all the moneys received by them under the various acts of the legislature as and for commutation money upon the bonds mentioned in chapter 195 of the laws of 1847, and other laws amendatory thereof, having been expended by them in indemnifying the various cities, [569] towns and counties of the state, under and pursuant to said chapter and laws, and in maintaining and supporting the persons or passengers mentioned and described in said chapter and laws. As these defendants are public officers, executing the duties of an important public trust, they obviously cannot be required to pay moneys for public purposes before such moneys come to their hands. If their answer is true, they cannot comply with the writ of mandamus issued in this action, for they have no funds wherewith to make payment. But aside from this present deficiency of funds to meet the claim of the relators, and assuming that from the bonds in their possession, or from other sources, they may receive funds from which such payment may hereafter be made, the defendants deny generally, their duty to make such payments, on the ground that the claims made by the relators were for temporary relief only, and that they were prohibited from paying or appropriating any money to the payment of such claims.
So far as relates to the duty of the defendants to indemnify the towns, cities and counties of the state for money expended for the support or maintenance of the emigrant passengers for whom commutation money shall have been paid, or on whose account bonds shall have been taken, I cannot perceive upon what ground they are entitled to inquire whether such emigrants received temporary relief, or permanent support or maintenance. I concur with the view of the judge at special term on this point. Section 5 of the act of 1847 declares that in case any of the persons for whom commutation money has been paid, or for whom a bond has been given, shall at any time within five years from the payment of such money or the execution of such bond, become chargeable upon any city, town or county within this state, it shall be the duty of the said commissioners to provide for the payment of any expense incurred by any such city, town or county, for the maintenance and support of any such person. This provision relates to all the modes in which the poor become chargeable upon the public, and to all the legal ways or processes by [570] which expense is incurred or paid by reason of a poor person becoming chargeable either to the towns, cities or counties of the state. The said commissioners, by section 4, are required “to appropriate the moneys which shall come to their hands under the provisions of said act, in such manner as to indemnify so far as may be the several cities, towns and counties of the state, for any expense or charge which may be incurred for the maintenance and support of the persons named in said act, to wit: the emigrant passengers. Temporary relief is necessarily included within this provision, for it is one of the modes or ways of supporting and maintaining the poor in towns, cities and counties, provided by law. The commissioners are bound to indemnify such towns, cities and counties against all expenses lawfully incurred and paid in support of such emigrants. They have doubtless the right to require that the money be expended in conformity with law. This brings us to a new point, not raised at special term, that the relators could not lawfully expend the money of the county for temporary relief. If this be so, the relators cannot require the defendants to reimburse them or the county for money thus unlawfully expended.
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By the Court, E. Darwin Smith, J.
The duty of the defendants, so far as they have funds in hand, or available for that purpose, to provide for the maintenance and support of the persons named in the exhibit or schedule annexed to the writ of mandamus in this action, is not denied. The defendants say they have no funds in hand; all the moneys received by them under the various acts of the legislature as and for commutation money upon the bonds mentioned in chapter 195 of the laws of 1847, and other laws amendatory thereof, having been expended by them in indemnifying the various cities, [569] towns and counties of the state, under and pursuant to said chapter and laws, and in maintaining and supporting the persons or passengers mentioned and described in said chapter and laws. As these defendants are public officers, executing the duties of an important public trust, they obviously cannot be required to pay moneys for public purposes before such moneys come to their hands. If their answer is true, they cannot comply with the writ of mandamus issued in this action, for they have no funds wherewith to make payment. But aside from this present deficiency of funds to meet the claim of the relators, and assuming that from the bonds in their possession, or from other sources, they may receive funds from which such payment may hereafter be made, the defendants deny generally, their duty to make such payments, on the ground that the claims made by the relators were for temporary relief only, and that they were prohibited from paying or appropriating any money to the payment of such claims.
So far as relates to the duty of the defendants to indemnify the towns, cities and counties of the state for money expended for the support or maintenance of the emigrant passengers for whom commutation money shall have been paid, or on whose account bonds shall have been taken, I cannot perceive upon what ground they are entitled to inquire whether such emigrants received temporary relief, or permanent support or maintenance. I concur with the view of the judge at special term on this point. Section 5 of the act of 1847 declares that in case any of the persons for whom commutation money has been paid, or for whom a bond has been given, shall at any time within five years from the payment of such money or the execution of such bond, become chargeable upon any city, town or county within this state, it shall be the duty of the said commissioners to provide for the payment of any expense incurred by any such city, town or county, for the maintenance and support of any such person. This provision relates to all the modes in which the poor become chargeable upon the public, and to all the legal ways or processes by [570] which expense is incurred or paid by reason of a poor person becoming chargeable either to the towns, cities or counties of the state. The said commissioners, by section 4, are required “to appropriate the moneys which shall come to their hands under the provisions of said act, in such manner as to indemnify so far as may be the several cities, towns and counties of the state, for any expense or charge which may be incurred for the maintenance and support of the persons named in said act, to wit: the emigrant passengers. Temporary relief is necessarily included within this provision, for it is one of the modes or ways of supporting and maintaining the poor in towns, cities and counties, provided by law. The commissioners are bound to indemnify such towns, cities and counties against all expenses lawfully incurred and paid in support of such emigrants. They have doubtless the right to require that the money be expended in conformity with law. This brings us to a new point, not raised at special term, that the relators could not lawfully expend the money of the county for temporary relief. If this be so, the relators cannot require the defendants to reimburse them or the county for money thus unlawfully expended.
The demurrer admits that the claim of the relators is for money of the county of Monroe, expended by the relators in the character and capacity of superintendents of the poor pf said county, for the temporary relief of the persons named in the schedule attached" to such writ. The care of the poor in this state, so far as they are supported or relieved at the public expense, is confided to two classes of officers, called overseers of the poor and superintendents of the poor. The office of overseer of the poor was created by act of the legislature in 1788. They were town officers, elected by the towns, and had exclusive charge and oversight of the poor affairs of the state, so far as the poor were chargeable to the public, in their respective towns, until 1824. In 1824, by an act entitled “An act to provide for the establishment of county poor houses,” (Sess. Laws 382, ch. 331,) the supervisors of the respective [571] counties of the state, in some counties were required, and in the others authorized, to purchase one or more tracts of land, not exceeding 200 acres, and thereon to build and erect, for the accommodation, employment and use of the county, one or more suitable buildings, to be denominated the poor-house of such county, and, to defray the expense of such purchase and buildings, to raise by tax the requisite moneys. And it was made the duty of such supervisors, in the said act, to choose annually, by plurality of votes, not less than five persons, who should be denominated superintendents of the poor of such county, who should take upon themselves and have the exclusive charge, management, direction and superintendence of said poor-house, and of every thing relating to the, same. The said superintendents were also authorized in said act to make rules for the regulation and government of said poor-house, to appoint a keeper thereof, and to contract for the support of the persons who should be placed in the poor-houses of the respective counties. In section 3 of said act, provision is made for peopling said poor-houses, by authorizing the overseers of the respective towns, in respect to any person in any city or town, who shall apply for relief, to make apphcation to a justice of the peace of the county, which justice and the said overseer were required to inquire into the circumstances of such poor, person, and if it appears to them that the said person is in indigent circumstances^ so as to require relief, to issue a warrant to any constable, requiring "him to remove such poor person to the poor-house of such county. Under this act, the superintendents of the poor had no charge, duty or authority in respect to the poor of their respective counties, except at the poor-house) and after they were at that place, duly committed or entrusted to their keeping. On the revision in 1827 the provisions of this act of 1824 were substantially re-enacted. The revisers, in preparing title 1 of chapter 2 of 1st part of revised statutes, combined the provisions of various laws providing for the support of the poor under three ways then in force in the state) in different counties: [572] one where the poor were all a. county charge; one where there were county poor houses- where county and town poor were supported; and the other where the towns supported their own poor. They endeavored to consolidate these laws into one system. They proposed a system making all the poor a county charge, but it was not adopted by the legislature. The present system requires -the appointment of county superintendents in all counties, and the erection of county poorhouses, (except Hew. York.) Section 16 declares, that the-superintendents shall be a corporation, and shall possess the usual powers Of corporations for public purposes, and shall have a general superintendence and care of the county poor who shall be in their respective counties, and shall have the powers specified in eleven subdivisions following. These subdivisions embrace the same powers conferred upon the county superintendent by the act of 1824, with some additions and amplifications. The duties prescribed in these subdivisions all relate to the support of the poor at the county poor house, and for the determination and settlement of the claims of the towns in respect to. the. poor, giving the.superintendents a general supervisory jurisdiction over all questions relating to the settlement of the poor, and of the respective liabilities of the towns and county. The powers conferred upon the superintendents in this section, as a corporation, are such as are incidental to all public officers where several persons; must act together. They merely constitute them a corporation, with the usual powers to assemble, to have succession notwithstanding a change of officers, to sue and be sued, and use the corporate name, and act as a public body, possessing in this instance a general supervision and care over the county poor. The special enumeration of the powers conferred upon the superintendents, constitute the charter of the corporation, and- embrace all their powers, except such as are incidental to all corporations or public bodies. All corporations or public officers, or other persons exercising a special authority, must keep within the limits prescribed for them by law, (15 N. Y. Rep. [573]*5731 Smith, 1,) and must show their power of attorney in the statute hook. All the power conferred upon the county superintendents, to support and maintain the county poor, must he exercised according to these provisions, at the county poorhouse, or at such other place as may he provided for that purpose by the direction of the hoard of supervisors.
In none of the subdivisions of said section, and in none of the enumerations of the powers of the superintendents, or in any distinct section, is any power given to the superintendents, or any of them, to expend money for the temporary relief of the poor, or to spend any money for their support elsewhere than at the poor-house, or place provided for their support as a substitute therefor, under the direction of the supervisors. The poor-houses are to he supplied with inmates by persons sent to them by Order of the overseers of the poor, precisely as under the third section of the act of 1824, except that the overseer of the poor need not associate with him a justice of the peace in making such order, as prescribed in said last mentioned act, but so far as relates to temporary relief, the intervention and order of a justice of the peace is still required, (sec. 42,) and that this power of giving temporary relief is only given to the overseers of the poor, is obvious from the provision in the same section, that not more than $10 can be expended or paid for the relief of any one poor person or family, without the sanction in writing of one of the superintendents of the poor, to be presented to the county treasurer, with the order of the justice; thus making the superintendents of the poor also a check upon the overseer, together with the justices of the peace. Ho other provision for temporary relief is made, except that contained in this section, 42. Ho officer is authorized to make such expenditure but the overseers of the poor. This section has since been amended by chapter 236 of laws of 1854, so as to allow the overseer to expend a sum not to exceed $10, in his discretion, for the temporary relief of one poor person, without the order pf the justice. The system for the support of the poor, pre-,[574] scribed in this title of the revised statutes, gives to the superintendents supervisory powers like those of directors of a corporation aggregate over the poor-house and poor affairs of the county, and gives to overseers of the poor power to send paupers to the poor-house and give them temporary relief, and constitutes them the only officers who are to come in the first instance in personal contact with the individual poor; the only officers to inquire into their circumstances and to make primary provision for their support.
[Cayuga General Term,
June 7, 1858.
Johnson, Welles and Smith, Justices.]
The moneys of tire public for the support of the poor are all placed in the keeping of the county treasurer, who may pay, and is only authorized to pay, the superintendent the sums required to support the poor-house, and to the overseer the sums requisite for temporary relief.
The poor system as devised by the legislature is one of checks and guards, carefully provided to protect the public interests in respect to the disbursement of the public money designed for the support of the poor. Around the superintendents of the poor as disbursing officers to the individual poor, there are no checks or guards, and for the obvious reason that they are entrusted with no money for such purpose. Their resolution to appropriate money for some specific object, their draft upon the treasurer for such money, and their voucher therefor from the person to whom the same is paid, may explain all their moneyed transactions for the public. They have clearly no authority to draw, use or expend the public money otherwise than is prescribed or allowed to them expressly by law for the support of the poor at the poor-house.
The moneys expended by the relators, for the temporary relief of the persons named in the schedule annexed to the writ in this cause, having thus been expended without any authority of law, the defendants are entitled to judgment upon the demurrer, and the writ of peremptory mandamus must be denied, and the order of the special term should be reversed.