People ex rel. Johnson v. Supervisors of Delaware

Majority

p. 416

THE PEOPLE, ex rel. JOHNSON, against THE SUPERVISORS OF DELAWARE.

[No. 2 of this name.]

Supreme Court, Third Department, Sixth District; General Term,

June, 1870.

Headnote

Mandamus.—Audit op Accounts.—Presentation op Claim to Supervisors.

The refusal of the board of supervisors to audit a claim will not be reviewed and a mandamus issued, unless the claim was presented in the form of an account duly verified.

Neither the report of a committee of the supervisors, setting forth the items of the claim, nor an official report made by the claimant as a public officer, can be regarded as a presentation of the claim, for this purpose.

Appeal from an order refusing a mandamus.

The relator, Stephen C. Johnson, being, in 1861, an attorney of the board of commissioners of excise of Delaware county, reported to the commissioners a statement of his account with them, showing a balance due him of one hundred and thirteen dollars and forty-three cents. The commissioners reported the same, at his request, to the defendants, who referred the report to their committee, by whom the report was approved as correct. In the following year the relator made another verified report, in which, among other things, he re-stated the balance of the former report, and requested payment.

The commissioners laid the second report before the defendants, and it was referred by them to the commit

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tee; and subsequently the defendants, without ques tinning the accuracy of the account, made an order, requesting him to collect the fees of which it consisted, from the persons prosecuted. At a subsequent annual meeting of defendants, the relator again presented Ms verified account for the aforesaid balance. They referred the account to the committee, who subsequently, and without assigning reasons, rejected the account.

The relator’s application for a mandamus was denied at special term; the following opinion being rendered:

BoabdiUAN, J.—The account is not presented by items, in such form as required by law. Nor is the original report made by Mr. Johnson to the excise commissioners, in 1861, in any better condition. Neither the one nor the other show the items of the account, nor the sources of the indebtedness. The report made to the commissioners, and by them filed as part of their report to the board of supervisors, is not a presentation by Mr. Johnson of a claim against the county to the board. Nor has the board, by filing such report, containing a statement of amount claimed by Mr. Johnson to be Ms due, recognized its correctness, or been estopped from its examination. As no reason has been given why the claim was rejected, we are left to conjecture. It may have been rejected for want of form ; but in that case it should have been returned, and notice given to Mr. Johnson that the bill should be made out in items, so that the supervisors could judge of their legality and necessity. It may have been rejected because the excise commissioners had no authority to employ an attorney, and charge the county with the expense thus incurred; or it may have been rejected upon the plea that the claim was so old and stale that the relator should not be permitted to recover it.

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Whatever view the board took should have been communicated to the relator, so that he could remedy the defect, or satisfy the judgment of the supervisors that the bill was correct, and should be paid. I cannot see, however, how the court can order this bill, as presented, to be audited and paid. It is not possible to determine that it is just and proper to be allowed, because it contains nothing from which such judgment can fairly be formed. The items constituting this account may be, when seen, all legal and proper, or they may be wholly or partially illegal, and improper to be allowed.

For this reason the motion must be denied ; but as the board have neglected to make known the cause of rejecting the bill, and as the denial of the motion is upon a ground which could have been obviated if made known to the relator, the motion is denied without costs:

From the order entered on this decision the relator appealed to the court at general term:

Stephen Q. Johnson, relator in person,

Insisted that by reason of adopting the report, without objection, the. account had become liquidated, and defendants were estopped from questioning it (2 N. Y. [2 Comst.], 170; 10 Barb., 213 ; 4 Paige, 481; 4 Cranch, 306 ; 1 Story Eq., § 526; 2 Atk., 251; 1 Abb. N. Y. Dig., 19; 35 Barb., 408 ; 20 Id., 294; 18 Johns., 242 ; 2 Crary Pr., 55; 10 N. Y. [6 Seld.], 202; 5 Den., 401 ; 26 Wend., 404 ; 11 Id., 477 ; 7 Id., 441 ; 15 Johns., 424 ; 30 How. Pr., 173 ; 35 Barb., 408 ; Moses on Mand., 125; 1 Crary Pr., 200; 1 Hill, 154 ; 7 Paige, 364; 2 Id., 327).

William Gleason, for the defendants,

respondents,—Referred to the cases cited by him in the preceding cause.

The relator’s claim against the county of Delaware, to enforce the payment of which he invokes the remedy of a mandamus, appears to be equitable and just, and would seem to have been a demand which might properly and fairly have been audited by the board of supervisors. But as they have refused to allow it, and as it was not presented in a shape from which it can be determined on its face that the demand was a lawful charge against the county, it is difficult to see how this court can make a peremptory order that the bill be audited and paid as presented. There are no items before us, or statements in the papers which show what specific charges in the way of items were presented to the board of supervisors.

Not only was the account not presented by items as the law requires, but there is nothing to show what the items were.

The claim made, that it was fixed and liquidated by the board on a prior occasion, does not obviate the difficulty in aEowing a mandamus for a demand which the court cannot see is unquestionably lawful as well as just. An account of items is not furnished from which It is apparent what specific charges are made in the account; and even if the report of the relator showed a detailed statement, no such statement was presented in the form of an account, duly verified, according to law. The report of the commissioners or of the relator cannot, I think, be considered as a presentation of a claim against the county according to law.

It does not distinctly appear upon what ground this claim was rejected. While it would be eminently just to the relator, for the board to advise him of the alleged defect, and furnish him an opportunity to remedy the difficulty if he coidd do so, yet, as the case stands, I

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cannot but regard the action of the board as a judicial act, which we cannot review, and with which we are not at liberty to interfere.

The order of the special term, therefore, must be affirmed, with ten dollars cost of appeal.

Footnotes

* Present—Miller, Potter, and Parker, JJ.