People ex rel. Smart v. Board of Supervisors

Majority

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The People of the State of New York ex rel. John G. Smart, as President of the Taxpayers’ League of the County of Washington, Appellant, v. The Board of Supervisors of Washington County, Respondent.

Headnote

Mandamus — when proper where a claim is rejected by a board of supervisors—a taxpayerd association is entitled to the expenses of preferring charges—a retainer by the Attorney-General is unnecessary— “reasonable costs and expenses" defined.

The rejection of a claim by the board of supervisors of a county, on the ground that the county is not liable therefor, maybe reviewed by mandamus as well as by certiorari.

Where the taxpayers of a county form an unincorporated association for the purpose of investigating the bills of county officials and of taking steps for the removal of officials presenting fraudulent bills, and the president of the association prefers written charges against the sheriff of the county before the Governor, alleging among other things that he had knowingly presented fraudulent accounts to the board of supervisors, and three days before the time fixed for the hearing the sheriff resigns, and is thereafter indicted by the grand jury of the county for the same offenses set forth in the charges presented to the Governor and pleads guilty to the indictment, the association, as such, is entitled, if it be shown that the president acted on behalf of the association, and that his counsel was employed by it, to recover from the County the reasonable costs and expenses of the proceeding, under subdivision 16 of section 230 of the County Law (Laws of 1892, chap. 686), which provides that, “ the reasonable costs and expenses in proceedings before the Governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein,” are county charges, notwithstanding the fact that the president appeared as an individual complainant in the proceedings before the Governor.

Semble, that the fact that the president of the association was not formally retained by the Attorney-General does not affect the validity of the association’s claim for reimbursement.

Semble, that the court will interpret the term “ reasonable costs and expenses,” used in the subdivision in question, tornean such costs and expenses as are incurred in a, proceeding instituted upon reasonable: grounds.

Appeal by the relator, John G. Smart, as president of the Taxpayers’ League of the County of W ashingtdn, from an order of the Supreme Court, made at the Washington Trial Term and entered, in the office of the clerk of the county of Washington on the 15th day of April, 1901, dismissing an alternative writ of mandamus.

The relief sought by the relator was a writ of mandamus to com

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pel the board of supervisors to audit the claim of the relator for expenses claimed to have been incurred in a proceeding before the Grovernor for the removal of the sheriff of Washington county upon charges preferred. The claim is made under section 230, subdivision 16, of chapter 686 of the Laws of 1892, which specifies as county charges “ the reasonable costs and expenses in proceedings before the Governor for the removal of any county officer upon charges preferred against him, including the talcing and printing of the testimony therein.”

The relator, John G. Smart, claims to be the president of the Taxpayers’ League of theOounty of Washington, an unincorporated association consisting of more than seven members. Among the objects of this association was the examination of bills of county officials of the county of Washington, and if such bills were found to be fraudulent, then to cause proper legal action to be taken' for the removal of such officials from office. In 1898 and 1899 two bills were presented by John M. Hulett, the sheriff of Washington county, the first for over $8,000 and the second for over $10,000, both of which bills were audited by the board of supervisors of said county at the full amount claimed. These bills were claimed to be fraudulent, and in March, 1900, the relator preferred written charges against said Hulett, as said sheriff, before the Governor, accusing the said Hulett of malfeasance, misfeasance and nonfeasance in the discharge of the duties of the office of sheriff and for violation of the laws of the State relating to public officers and public offices, and with the violation of his duty as prescribed by chapter 117 of the Laws of 1897, in that he had knowingly and corruptly presented false and fraudulent accounts to the board of supervisors in 1898 and 1899 for audit and allowance, and that said accounts were accompanied by false and fraudulent vouchers, and that the said Hulett kept untrue, dishonest and false books of account for the purpose of obtaining the audit of false and fraudulent accounts. The charges were entertained by the Governor and a cojiy served upon Hulett, who filed a verified answer generally denying all allegations of . misconduct alleged against him. He also demanded a bill of particulars, and the Governor thereupon directed a bill of particulars to be furnished. On the twenty-fourth of May a bill of particulars was furnished, which set forth twenty-four items

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alleged to be false and fraudulent, and thereafter a bill of particulars was furnished specifying 300 items as false and fraudulent. On or about the 7th of June, 1900, the Attorney-General was directed to take charge of the said prosecution. He thereupon, notified the complainant that he must be prepared to substantiate the charges. The Governor appointed a commissioner to take the evidence and the tenth day of July had been designated as the time for the hearing. Upon the seventh day of July, three days before the time of the hearing, the sheriff resigned his office and consequently no hearing was had upon the tenth day of July. After the sheriff’s resignation he was indicted by the grand jury of Washington county for a part of the same offense set forth in the charges against him before the Governor. Two indictments were found, to each of which he pleaded guilty, and upon conviction was fined $1,000. He also made restitution to the county of Washington in the sum of $5,000. Thereafter the relator presented to the board of supervisors a bill, amounting to $373.09, for expenses which had been incurred by the Taxpayers’ League in said prosecution. That bill was rejected. To compel the audit of that bill the writ of mandamus was sought in this proceeding.

Upon an affidavit reciting substantially the foregoing facts application was made for a peremptory writ. Upon that application the board of supervisors presented an affidavit which contained denials of some of the allegations in the moving affidavits. Thereupon, an alternative writ Was ordered. To that Writ return was duly made by the board of supervisors. In that return there was a general denial pleaded and an allegation that the said account was rejected upon the merits. Upon the coming on for trial of the issue made by the alternative writ and the return the respondents here moved to.dismiss the writ. This motion was granted by the trial judge upon the ground as stated, that the provision of the statute under which this relief was sought was intended to provide only for such expenses as before the passage of the act were properly chargeable against the State, and inasmuch as the relator had not been formally retained by the Attorney-General he could have no claim against the State,, and, therefore^ had no claim .against the county under the statute invoked. From this decision the relator has appealed to this court.

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R. O. Bascom, for the appellant.

Fred A. Bratt, for the respondent.

The final order appealed from is sought to be sustained, first, upon-the ground that the relator has mistaken his remedy. In the return it is alleged that the claim was considered and dismissed upon its merits. It is undoubtedly true if upon fair judicial investigation the hoard of supervisors had determined that the moneys claimed were not expended by the relator in the prosecution of these charges before the Governor, the respondents would have audited the relator’s claim, and the relator’s remedy for an erroneous audit is by certiorari and not by mandamus. Upon the papers presented, however, it is apparent that upon a writ of certiorari no such investigation would appear as would present aught for review, and the relator would be sent back to his application for a writ of mandamus as in the case of People ex rel. Smith v. Trustees ( 11 App. Div. 108 ). The real ground upon which the bill was as a whole rejected, appears to have been the rejected claim of county liability for the expenses, thus incurred, and it was thus considered by the trial judge in making his determination. If a legal audit had been made it was for the respondents to show that fact in defense upon the trial, and in reviewing a dismissal of the alternative writ at the opening of the trial the relator is entitled to the presumption that the respondents have failed properly to audit the said claim as charged in the writ.

Nor do we agree with the respondents in their contention that a rejection of said claim on the ground of non-liability is a judicial determination which can only be reviewed upon a writ of certiorari. In People ex rel. Morrison v. Supervisors of Hamilton Gounty ( 56 Hun, 459 ) it was held that the rejection of a claim upon the ground of non-liability might be reviewed either by a writ of certiorari or by mandamus, as the action of the board was not only judicial but a refusal to perform a duty in respect to the payment of a claim which could be enforced by mandamus. This determination was affirmed by the Court of Appeals ( 127 N. Y. 654 ) upon the opinion delivered at the General Term. This application in form seems to be authorized by the case of People ex rel. Benner v. Supervisors of Queens County ( 39 Hun, 442 ).

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Nor do wé agree with the respondents in their contention that the claim should have, been made by Smart individually and by Bascom, the attorney employed, instead of by the Taxpayers’ League. Notwithstanding Smart appeared as an individual complainant before the Governor, nevertheless, if he were acting, in behalf of" the Taxpayers’ League and if counsel were employed by that league, the league was liable for the expenses of both complainant and counsel, and I am unable to see why the league is not fairly entitled to reimbursement for" any expenses incurred within the provisions of the act as well as would.be the complainant himself or his counsel, .had they been acting independently and not under the employment of the league. That the league is not incorporated cannot affect the question. A number of citizens have the right to join together for such a purpose with the same standing as would have a single individual, "and- the purpose of such an organization is laudable as well as legal. We find no causé in the record for the criticism of the relator contained in the respondents’ brief.,

We are thus brought to the consideration of the ground upon which this writ was dismissed by the Special Term. If it were necessary to have authority to act from the Attorney-General in order to make valid this claim the communication from the Attorney-General of June seventh, found upon page 23 of the record, would seem to constitute such authority for incurring at least part of the expenses for which this claim is made. But we are finable to find any sufficient reason for giving. to the statute the restricted interpretation adopted by the learned trial judge. The provision cited is a substantial re-enactment of chapter 323 of the Laws of 1874. The history of that law is set forth in'the opinion of Justice Barnard in the case of People ex rel. Benner v. Supervisors of Queens County (supra). It appears that there had been "an unsuccessful charge of malfeasance against the sheriff of Clinton county. The district attorney had employed counsel to prosecute. The matter was referred, proof .was taken" and the sheriff successfully defended. ' In that case an allowance was made by the Legislature, not only to the prosecuting attorney and to the referee, but also to the defendant as compensation for his disbursements. In the same act it was provided that in all proceedings thereafter before Governors for the removal of county, officers upon charges

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preferred against them, “ the costs and expenses thereof, including those of taking and printing the testimony therein, shall be a county charge upon such- county.” This legislation was re-enacted in the Laws of 1892 with the amendment providing that “ the reasonable costs and expenses ” in such a proceeding should be a charge against the county. This legislation, in view of the allowance made in the very enactment in which it is first found, would seem to me to 'negative the rule of law as held by the learned trial judge. With-cut legislation I know of no rule of law. which would make the State liable for counsel employed by the district attorney to prosecute such charges, nor for the expenses and disbursements incurred by the officer charged in his defense. A private citizen clearly had the right to make and prosecute charges before the Governor. The statute does not limit the right to reimbursement to counsel employed by the Governor or employed by the Attorney-General. For the - court to add to the statute a restriction not included by the Legislature would be unwarranted judicial legislation.

Nor does the fact that the county might be subjected to numerous bills of expenses warrant the court in placing in the statute a limitation which the Legislature has omitted. It is probable that the court would interpret the reasonable costs and expenses of a proceeding before the Governor, as such costs as are incurred in a proceeding instituted upon reasonable grounds. With that interpretation there could be no-- fear of an excessive liability to the county, and the same policy of the law which protects a prosecutor of crime where there is probable cause to believe in the commission of the crime, might be urged to encourage one making charges against a public officer where there is probable cause for belief in his guilt. That there was probable cause in the. case at bar would seem to be indicated at least prima facie by the resignation of the sheriff, and by his conviction upon the same charges which were presented to the Governor by the relator.

We are, therefore, of opinion that for such expenses and disbursements as were reasonably made by the relator in the prosecution before the Governor, after the filing of the charges, the relator is entitled to reimbursement. As to what those expenses and disbursements were, the respondents must, in the first instance, determine, subject to review by the writ of certiorari, in case error is

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claimed to have been made in such determination. In the return to the alternative writ a legal audit is claimed to have been made,, and upon that audit the relator’s claim rejected. That issue the defendants are entitled to try, and for such purpose a new trial should be granted.

Order appealed from reversed, and new trial of the issues upon the alternative writ and the return granted, With costs to the appelant to abide event.

All concurred.

Order appealed from reversed, and new trial of the issues upon the alternative writ and the return granted, with costs to appellant to abide event.

Cases cited

People ex rel. Smith v. Board of Trustees 11 App. Div. 108 N.Y. App. Div. 1896-12-31 p. 69