People ex rel. Deane v. Supervisors of Greene

middle letter, on the ground that it had no power to go back of the ballots to ascertain the intent of the voters. The supreme court, both at special and general terms, confirmed the action of the board by refusing a mandamus to compel it to count for Getty the ballots, printing his name with a wrong middle letter. (This action of the supreme • court is not set out in the motion papers, but the court takes judicial cognizance of its own proceedings.) Kortz acted as coroner in good faith, and performed services as such in good faith until November 13, 1883, when he was ousted from office by the judgment in the action brought in this court by the people and Andrew H. Getty against him to recover possession of the office. For services in the office of coroner, and disbursements in rendering such services, all of which were rendered and disbursed previous to the judgment of ouster, Kortz presented a bill, properly verified, to the supervisors of Greene county at its annual session in 1883 for audit and allowance. It was audited and allowed by the board in good faith, the amount thereof incorporated in the tax levy, and certificate duly issued to Kortz for the amount thereof, which had been assigned toa tona fide holder for value, previous to the initiation of this proceeding which seeks to compel the board to cancel the audit and allowance. The mandamus asked is refused for the following reasons: 1st. The board of supervisors of Greene county, by awarding to Kortz the certificate of election as coroner authorized and empowered him to act as such, and as such services were valuable and legal, there is no impropriety or illegality in their audit or payment. It is possible (but on that point no definite opinion is expressedX that under section 1953 of the Code of Civil Procedure, Getty may recover from Kortz the fees and perquisites of the office covered by and included in the audit, but it is clear, that Getty,

who did not render the services 'nor disburse the money, could not obtain payment therefor from the county, nor could he truly swear, which he must do to obtain the .allowance, that he had rendered the services and made the disbursements. The granting of the mandamus would, therefore, exempt the county from payment for lawful services of which it had the full benefit. 2nd. As Getty cannot obtain an allowance of the same bill from the county, but his remedy, if any he has, is against Kortz ; there is no property nor money of the county to be wasted, which gives the relator, as a tax-payer, any standing to.maintain this proceeding. 3rd. If the audit to Kortz is illegal, it can be reviewed by certiorari, or an action brought, to recover the money paid thereon, when paid. 4th.. A certificate was issued in good faith to Kortz, and was assigned to a tona fide holder for value before this proceeding was initiated, and as against such tona fide holder for the value of the certificate, the county is. remediless (People ex rel. Central Nat. Bk. v. Fitzgerald, 54 How. Pr. 1 ). 5th. The exercise of a sound discretion forbids its issue. As this proceeding was initiated in good faith, and presents a new and reasonable question for adjudication in which the relator has no greater personal interest than any other tax-payer of Greene county, the application for a mandamuses denied, without costs.