People ex rel. McSpedon v. Stout, County Treasurer

4 Abb. Pr. 22, 23 Barb. 338, 13 How. Pr. 314

Opinion

Davies, J.

—The Begister of the City and County of New York is a county officer (Const. 1846, art. 10, § § 1, 2; Rev. Stats., Pt. 1, ch. 12, tit. 2, art. 8). It is made the duty of the Begister of the City and County of Mew York to provide the necessary books for recording deeds and mortgages, and books for general indices. A like duty is imposed on the clerks of the several counties. In the case of Bright v. The Supervisors of Chenango (18 Johns., 242), this court held, that “ the books directed to be procured become permanent records, and are the property of the county.” Although not exclusively, they are chiefly for the benefit of the county. The clerk is bound to transmit them to his successor. The successor is not bound to pay the preceding clerk; and hence it follows that if no compensation is to be made, it becomes a game of chance between the different incumbents. The one who comes in after books are provided, and retires before new ones are necessary, will find it an office of profit; while the predecessor who purchased the books, and is shortly thereafter removed, may not have realized sufficient to equal his actual advancements. Such injustice has not received the sanction of law, but is guarded against by requiring the supervisors “ to allow all accounts chargeable against the county.” The authority is general, and was intended to embrace any case where the service rendered was specially for the benefit of the county, and for which other provision had not been made. The present case is clearly one of that description, so far as it respects the books purchased. In conformity with this principle, the books in the Begister’s office have been purchased and paid for by the county, and are consequently the property of the county.

It follows that the necessary expense incurred in keeping the property of the county in repair, and to preserve it from decay, and keep it in a condition for use, is a proper and legal county charge.

The audit and allowance by the Board of Supervisors, in cases where they are authorized to act, is final and conclusive as to the amount to be paid (People v. Supervisors of Queens, 1 Hill, 195; Same v. Lawrence, 6 Hill, 244).

By section 28 of the Code it is made the duty of the supervisors of the several counties of this State to provide the courts appointed to be held therein, with room, attendants, fuel, lights, and stationery, suitable and sufficient for the transaction of their business. If the supervisors neglect, the court may order the sheriff to do so, and the expense incurred by him shall be a county charge. Section 51 of the Code makes this section applicable to the Superior Court, Court of Common Pleas, and Marine Court of this city.

If, therefore, the supervisors incur the expense, in compliance with this requirement of the Code, such expense necessarily becomes a county charge. If it is incurred by the sheriff in pursuance of an order of" the court, the laws declare it shall be a county charge.

The providing of rooms suitable and sufficient for the transaction of the business of the court, necessarily carries with it the authority to keep the rooms in suitable and convenient order, such as cleaning, painting, or other needful reparations. And if the one is a proper and legal county charge, it follows that the others would be also.

The amount therefor expended is a proper and legal county charge upon these grounds ; and it having been audited and allowed by the Board of Supervisors, such audit is final and conclusive as to the amount, for the reasons above stated.

If there were no other obstacle in the way, I should grant the peremptory mandamus in each of the above cases, for the reasons stated in the opinion in the case of The People on the relation of Downing, against this same defendant.

Footnotes

•

*

But the legislature have thought proper to place restraints upon the action of the Board of Supervisors of this county which do not exist in reference to the supervisors of any other county of this State, of which I am aware.

At the session of the Legislature held on April 12,1853, an act was passed further to amend the charter of the city of New York, which made many radical changes in reference to the city government, the management and disposition of its property, and the duties and liabilities of the officers of the city government, the organization of the courts therein, and the power of the Board of Supervisors.

Section 12 of that proposed act declared that “ all work to be done and supplies to be furnished for the Corporation involv ing an expenditure of more than two hundred and fifty dollars, shall be by' contract founded on sealed bids, or on proposals, made in compliance with public notice, for the full period of ten days; and all such contracts, when given, shall he given to the lowest bidder with adequate security. All such bids or proposals shall be opened by the heads of the departments adver tising for them, in the presence of the comptroller and such of the parties making them as may desire to be present.”

Section 15 of the same proposed act, declares that “ no contract of the supervisors shall be valid unless expressly authorized by statute, and such as are authorized must be made in the manner prescribed by the twelfth section of this act.”

The contracts in each of the above cases, it is apparent, were such as the supervisors were authorized to make ; but it is further declared that such contracts must be made in the manner prescribed in section 12.

It is conceded that they were not so made ; that the expenditure in each case was over the sum of $250; that no public notice was given at all for bids or sealed proposals ; that none were received; and that the work was not done by contract.

If this statute is the law of the State, it follows that the supervisors could create no legal liability against the county, by having this work done in direct violation of the provisions of this act; that no charge has been created against the county; and that this court not only should not award a peremptory mandamus to the county treasurer, commanding him to pay these accounts, but it would be its duty, on a proper application, to restrain him from so doing.

Neither the Corporation nor the Board of Supervisors can be bound or charged with a contract made contrary to law. The cases on this subject are too numerous and familiar to need citation. Neither can the Corporation or the Board of Supervisors assume and pay a debt not a legal obligation upon them (Hodges a. The City of Buffalo, 2 Denio, 110 ; Halstead a. The Mayor of New-York, 3 Comst., 430).

Neither will a mandamus be awarded to compel the county treasurer to pay an audit and allowance of an account by the Board of Supervisors, which was not a legal county charge (People v. Lawrence, 6 Hill, 244). In that case, the supervisors of the county of New-York audited and allowed to the relator, Justice Merritt, his account for expenses incurred by him in defending himself as one of the special justices in the city of New-York, on an impeachment and trial before the County Court.

The county treasurer refused to pay the account thus audited and allowed, and an application was made to this court for a mandamus to compel him. Bronson, J., in delivering the opinion of the court, says : “ Whatever appearance of justice there may he in charging the expenses of the accused upon the county, it is enough for us to say that this consideration addresses itself exclusively to the Legislature. If this had been a case where the supervisors had the authority to allow the claim, I agree that it would have been the duty of the treasurer to pay without inquiry whether the account was allowed upon insufficient evidence or at too large an amount. But here the supervisors had no jurisdiction over the subject-matter, and that fact appeared upon the face of the account which was presented for payment. This act was a mere nullity, and it was the duty of the treasurer to withhold payment.”

So, in the cause now under consideration, it appears from the papers that the work was not done in the manner prescribed in sections 12 and 15 of the amended charter of 1853, and the act of the supervisors in auditing and allowing the accounts was a mere nullity,, and it was the duty of the treasurer not to pay them. This is on the assumption that the act of 1853 is a valid and constitutional law. I am aware that the application of the principle seems harsh. But with the hardship of the case I can have nothing to do. The Legislature have made the law, and with them rests the responsibility. My duty is to expound and execute it as I find it, and the results flowing from it, in cases like those now before me, may lead the Legislature to a careful, review of these provisions. These parties, mechanics, have rendered service, and performed labor for the Corporation and the county, and of which the public authorities have had the benefit ; but through oversight, or from other motives, the agents of those bodies have chosen to have this work done in a manner prohibited by law, and in a way which the law declares shall not be valid. While I may regret that in these particular cases I am compelled to come to this result, my duty to maintain the law as I find it is too clear to shrink from it.

But is the law of 1853, amending the charter, valid and constitutional ? This question has been argued at great length, and with the ability and learning which might be expected from the distinguished counsel engaged.. •

It is insisted on the part of the relators that this act is void, because it is not in fact a law enacted by the Legislature;—that they delegated to the people of the city of New-York to say whether or not it should be a law of this State, and that such delegation was unconstitutional, and that one portion of the people of the State cannot say what shall be a law for the whole State.

These suggestions are of force, and not free from serious difficulty.

Section 20 of this act provided that the said act should be submitted for the approval of the electors of the city and county of New-York, at an election to be held in said city on June 7, in that year, and if a majority of the tickets voted at such election contained an approval of said act, then the same should become a law; if a majority of the tickets voted at said election contained a disapproval of the act, then the said act should be void.

Section 1 of article 3 of the Constitution of this State declares that the legislative power of this State shall be vested in a Senate and Assembly.

Section 14 of said article declares that the enacting clause of all bills shall be “The People of the State of New-York represented in" Senate and Assembly do enact as follows,” and no law shall be enacted except by bill.

Section 15 declares that no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the Legislature.

It is contended on the part of the relatora that this submission of the question, whether the act should or should not become a law, is in conflict with the Constitution, and therefore the act is unconstitutional and void.

A similar provision was inserted in the act passed March 26, 1849, in reference to the free schools of this State. Section 14 of that act, declared that in case a majority of all the votes cast at the election to be held to vote in relation to the act should be cast against the law, then that act shall be null and void; and in case a majority of all the votes should be cast for the law, then that act should become a law.

The effect of such provisions in the school laws, and of a similar proceeding to the one now under consideration, was passed upon by the Court of Appeals of this State in the case of Barto a. Himrod (4 Seld., 483). Chief Justice Buggies, in delivering the opinion of the court, says: “ It cannot he said that the propositions contained in that law in relation to free schools were enacted as laws by the Legislature. They were not laws or to become laws until they had received a majority of the votes of the people at the general election in their favor; nor unless they received such majority. It results, therefore, unavoidably, from the terms of the act itself, that it was the popular vote which made the law. The Legislature proposed the plan or project, and submitted it to the people to be passed or rejected. The Legislature had no power to make such submission, nor had the people to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the Constitution.”

Judge Willard says : “The law under consideration is in conflict with the Constitution in various respects. Instead of becoming a law by the action of the organs appointed by the Constitution for that purpose, it claims to become a law by the vote of the electors, and it claims that the popular vote may make it void and restore the former law. All the safeguards which the Constitution has provided are broken down, and the members of the Legislature are allowed to evade the responsibility which belongs to their office. * * * If this mode of legislation is permitted and becomes general, it will soon bring to a close the whole system of representative government, which has been so justly our pride. The Legislature will become an irresponsible cabal, too timid to answer the responsibility of lawgiver, and with just wisdom enough to devise subtle schemes of importance to mislead the people. All the checks against improvident legislation will be swept away, and the character of the Constitution will be radically changed.”

This decision is conclusive upon the question as to the unconstitutionality of this act, if it is not distinguishable from the one passed upon in that case. The counsel for the defendant contends that, as it was an act to amend and alter the charter of the city of Hew-York, it could not be constitutionally enacted without the assent of the electors of the city was obtained.

This very point was passed upon by Judge Allen, in the case of Clark a. The City of Rochester, lately decided by him. In 1851, an act was passed by the Legislature of this State to amend the charter of the city of Rochester. (Laws of 1851, ch. 389.) Sections 285 to 290 inclusive provided for the subscription by the Common Council of the city of Rochester to the stock of the Rochester and Genesee Talley Railroad Company.

Section 291 provided for submitting to the electors of the city of Rochester whether those sections should take effect as a law.

Section 292 declared that if two-thirds of the votes cast were in favor of said sections, then the same were to take effect immediately on filing a certificate of such election.

Judge Allen says : “ The expediency of laws of this character is to he judged of by the Legislature, and they cannot shrink from the constitutional responsibility resting upon them. It is not the case of conferring new powers or additional franchises upon a private corporation, which the corporation may elect to accept or not as they may deem expedient.”

So, in the case now under consideration, the provisions of the act of 1853, now called in question, do not affect any of the franchises or property of the Corporation, or confer any new power of additional franchises upon it. They are hut governmental regulations affecting the powers of the supervisors, which it was competent for the Legislature to make.

I must, therefore, hold, on the authority of these cases, that the act to amend the charter of 1853, so far at least as it seeks to make applicable to the Board of Supervisors sections 12 and 15 of that act, would he unconstitutional and void if no subsequent legislation has removed the difficulty. The decision of the Court of Appeals in Barto a. Himrod, was pronounced in June, 1853, at about the time the election was held in the city of New-York to vote upon this statute. This decision, it is understood, was the main reason for the passage of the act of June 14,1853, entitled “ An Act supplementary to an act entitled an act further to amend the charter of the city of New-York, passed April 12,1853.”

The fourth section of this act declares that the same and the act to which it is supplementary (that is, the act of April 12, 1853) “ shall commence and take effect as laws immediately.”

The counsel for the defendant contends that this was a re-passage of the act of April 12,1853, and that thereby the Legislature expressed its will that that act should immediately become a law. ■

In this position I am inclined to think he is correct. Regard ing the contemporaneous decision of the Court of Appeals, I cannot doubt that the Legislature must have been aware that the act of April 12 was unconstitutional and void, and that they therefore and thereby re-enacted the same. It is to be observed that the act of June 14,1853, is not entitled an act to amend that of April 12, but as supplementary to it. The great object of the rules and maxims of the interpretation of statutes is, in all cases, if possible, to discover the true intention of the law; for this purpose, it is to ascertain what was the mind of the framers of a particular statute, and when that can be indubitably ascertained the duty of the court is to give it effect, whatever may be their own opinion of its wisdom, expediency, or policy (Smith's Comm., § 515.)

I can have no doubt that it was the intention of the Legislature to re-enact and declare their will by section 4 of the act of June 14, that the act of April 12 should immediately become and take effect as a law, and that it is the duty of this court so to regard the language used. Considering the will of the Legislature thus declared, we must regard the act of April 12 as in fact enacted by the law of June 14, and the objection to the former in reference to its being dependent on the will of the electors whether or not it should become a law, as obviated.

I have not overlooked the suggestion so forcibly urged by the learned counsel for the relators, that the act of June 14,1853, was but an amendment of that of April 12, and that an amendment of a void law did not make it valid. Hie case of Bradley v. Baxter (15 Barb., 122) is certainly an authority for this position, and if the act of June 14 was simply but an amendment of that of April 12,1 should hold that it was no ratification of, nor gave any vitality to, that of April 12.

By a reference to the act amending the school law of March 20,1849, passed January 31, 1850 (Laws of 1850, ch. 7), it will be seen that the latter act only amends the eighth section of the former, and declares that the act of January 31 “shall take effect immediately.”

Judge Pratt, in delivering the opinion of the court in the case just cited, says: “ The Legislature, in passing the act (that of March 20, 1849), with a provision to submit the question to a vote of the people, assumed that the Legislature -as well as the people were vested with a power which we hold they do not possess. In amending the act, we have the right to suppose that they still labored under the same impression. They, therefore, only intended to amend what they supposed to be a valid law of the land, and not to take the responsibility of re-enacting the law itself. An amendment made under such circumstances cannot have the effect to make a void law valid.”

It seems to me that in this case, the Legislature did intend to take the responsibility of re-enacting the law itself, and that the language used is more broad and significant than the usual declaration, “ that this act shall take effect immediately.”

I am, therefore, of the opinion that the provisions of the statute in reference to the duty of the supervisors to have work done for them done by contract, are valid, and have been legally enacted, and that, consequently, the relators have no legal claim against the county for the work thus done contrary to these provisions of law; and the motions for a peremptory mandamus in each case must be denied.

In Downing’s case,—decided by Mr. Justice Davies at the special term at the same time with the case reported in our text,—his honor, after showing that the charges sought to be collected in that case were valid county charges, and such as the supervisors were bound to allow, proceeds as follows to state the reasons for awarding a peremptory mandamus.

“ The supervisors had therefore no discretion in reference to the matter but to audit and allow the accounts of the relator, on the basis of the compensation then established. In Supervisors of Onondaga County «. Briggs (2 Denio, 26), Judge Bronson held that the audit and allowance of accounts against the county by the Board of Supervisors, who had the authority to make such audit and allowance, is a determination conclusive upon both parties, especially upon themselves. Section 49 of article 1 of title 2, chapter 12, Part I. of the Revised Statutes, declares that the Mayor, Recorder, and Aldermen of the city and county of New-York shall be the supervisors of the city and county of New-York, and all the provisions of that article are made applicable to them, except where special provisions inconsistent therewith are or shall be made by law.

It is thus seen, I think, that the supervisors have discharged then- whole duty and nothing but their duty, in auditing and allowing this account. A further duty was imposed on them, and that was to direct the raising of such sums as might be necessary to defray or discharge all accounts, this as well as others, chargeable against the county.

This they had full and ample power to do by the Revised Statutes quoted above, without any further legislative action, and this the Board of Supervisors in any county of this State annually do, by virtue of the authority thus conferred.

An application was, however, made to the Legislature for authority to levy and collect by tax such sums as it was supposed would be necessary for these purposes ; and the Legislature at its last session authorized the Board of Supervisors to levy and collect by tax the sum of seventy thousand dollars for 1 county contingencies’ (Laws of 1856, 271, ch. 176), and this sum has accordingly been levied and collected for this purpose.

It was said on the argument that this sum has not been regarded as collected for county contingencies, or county charges, but has been used promiscuously for city contingencies, as well as county contingencies.

It seems to me that its designation is clear, specific, and unmistakable, and that it must be regarded as the plain declaration of the Legislature that this sum was raised for the payment of county contingencies or county charges. The Legislature well knew that there were county charges to be paid. They had so declared it on the statute-book, and made it the duty of the supervisors to audit and allow them. And I see no other fund authorized to be raised by the annual tax-bill, which can at all be regarded as a fund for such a purpose. We must bear in mind that it is the only fund enumerated in the tax-bill which can be thus used, and that this law contains this important and significant declaration, that ‘no portion of the said respective sums hereinbefore named shall be expended or applied to any other purpose or object than the said objects and purposes respectively for which the Board of Supervisors of said city and county of Hew-York are hereby empowered to raise the same as aforesaid’ (Laws of 1856, 273, ch. 176, § 2).

We thus see that county charges or county contingencies would accrue, and must be provided for, that the Legislature authorized the raising of the sum of 870,000 for their discharge and payment, and declared that the moneys so authorized to be raised for the purpose, should in no event be expended or applied to any other purpose. We must adopt this conclusion, or we are forced to the result that the Legislature did not intend that this fund should be used for the purpose and object designated, but intended to leave the Board of Supervisors under the power conferred on them by the Be vised Statutes to raise the necessary sums to defray all county charges in addition. I cannot think that this was the intent of the framers of the annual tax-bill, or of the Legislature which passed it, but the act is to be construed to mean just what it says, that this sum of $70,000 is to be expended and applied to county contingencies, and to no other purpose or object whatever.

The charters of the city of Hew-York authorize the appointment of an officer to be called the Chamberlain or treasurer thereof. Such an officer has existed since the earliest organization of the city government. He is to receive, keep, and disburse the funds of the Corporation, under such rules and regulations as the Common Council might from time to time prescribe. By section 70, of art. 2, tit. 2, of ch. 12, Part 1, of the Bevised Statutes, the chamberlain of the city and county of New-York shall be considered the county treasurer thereof, and all the provisions of that article are to be construed to apply to him, except when special provisions, inconsistent therewith, are or should be made by law. The treasurer is the officer of the county, and the county is liable for his default or misconduct. (The People v. The County of New-York, 5 Cow., 364.) By section 65 of this title it is provided that it shall be the duty of the county treasurer to receive all moneys belonging to the county from whatever source they shall be derived, and to pay and apply such moneys in the manner required by law.

It does not need any argument to show that moneys raised for county contingencies belong to the county, and that the sums so raised are to be received by the county treasurer thereof, and paid and applied by him, in the manner required by law.

That is, in reference to such moneys they can only be paid out to defray legal county charges, on accounts duly presented and verified according to law, and audited and allowed by the Board of Supervisors, and the resolution of such audit attested by the signature of the chairman of the Board, and the clerk thereof.

In reference to moneys to be drawn from him as chamberlain or treasurer of the Corporation, section 13 of the amended charter of 1853 provides that all accounts against the city shall be audited by the auditor of accounts, and that all moneys drawn from the city treasury shall be upon vouchers for the expenditure thereof examined and allowed, by the auditor and approved of by the comptroller. No moneys can therefore be paid legally or drawn from the city treasury, except on vouchers for the expenditure thereof, first examined and allowed by the auditor and then approved of by the comptroller.

We thus see with what care and caution the Legislature have thrown every guard around both the city and county treasury, and, in reference to the former, have placed a most emphatic veto upon the payment of any sum .by the chamberlain, unless he receives the approval of the head of the finance department.

Stringent regulations have also been provided by law in reference to payments by the county treasurer. Section 68 of title 2 above referred to declares that at the annual meeting of the Board of Supervisors, or at such other time as they shall direct, the county treasurer shall exhibit to them all his books and accounts, and all vouchers relating to the same, to be audited and allowed.

Section 43 of the same title makes it the duty of the Board of Supervisors annually to publish, in one or more public newspapers in such county, the names of every individual who shall have had any account audited and allowed by said Board, and the amount of said claim as allowed, together with the amount claimed.

We have seen how stringent are the penalties imposed on supervisors for the neglect of any duty imposed on them by law, and how uniformly the courts have enforced them.

These provisions for strict accountability and annual publicity of the claims audited and allowed, cannot fail to secure that rigid accountability and faithful application of the moneys raised by taxation which those who contribute it have the right on every principle to require.

We arrive now at our last inquiry, and that is, has the county treasurer any funds or moneys which he can apply to the payment of this account, and will a mandamus lie to compel its payment ?

That a mandamus will lie to compel a county treasurer to pay an account legally chargeable to the county, audited and allowed by the Board of Supervisors, was held by M’Coun, J., in Huff v. Knapp (1 Seld., 65), and by Strong, J., in The People o. Edmonds (15 Barb., 529).

If he has not the funds to pay the account, or has it not in his power to provide them, then he could not pay it, and the issuing of the mandamus would be an idle ceremony. It could not be complied with, and in such cases ought not to issue (The People v. Supervisors of Westchester County, Barb., 607 ; The People v. Supervisors of Greene, 12 Barb., 217).

If the defendant has or might have had the funds, he is equally bound to pay (Adsit v. Brady, 4 Bill, 634). The defendant alleges in his return that the whole of the moneys, being the sum of seventy thousand dollars, has been paid out by him on warrants drawn upon that fund, and he claims that such payments were made by legal and proper warrants.

He has furnished the court with a statement of the objects and purposes for which such payments were made, and he does not allege or pretend, that they were made to discharge accounts audited and allowed by the Board of Supervisors.

As I before intimated, I am of the opinion that this sum, which the Legislature authorized to be levied and collected for 'county contingencies,’ should in compliance with the statute have been paid into the county treasury, and that no payment, therefore, could legally be made, except in discharge of county charges, and which had been audited and allowed by the Board of Supervisors according to law. That the annual tax-bill of 1856 expressly prohibits moneys raised for one purpose to be applied to another, and that the use of the moneys raised by taxation for 'county contingencies’ to the payment and discharge of claims against the Corporation, or for city contingencies, cannot be sustained.

If the city have such charges and liabilities to meet, such an item must be provided for in the annual tax-bill; and because there are such liabilities which must be met, it is no reason, to my mind, why moneys, which the Legislature have authorized to be raised for one object, and which they have solemnly declared shall not be used for any other, shall be thus misapplied, and the obligations, to discharge which the fund was raised, remain unpaid.

I am unable to perceive any serious embarrassment which will result from an adherence to these requirements of the law. Whether there may be or not, I am not at liberty to disregard them, and being satisfied that the rplator is entitled to the relief asked for, the motion for the peremptory mandamus is granted, with costs.”