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People ex rel. Byrnes v. Green

64 Barb. 162 Court N.Y. Sup. Ct. Decision date 1872-11-04 English

Judges Ingraham and Brady, Justices.]

Delivered by Ingraham, P. J.

Contents

Majority

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The People, ex rel. Byrnes and others, vs. Green and others, constituting the Board of Apportionment and Audit of the city and county of New York.

Headnote

The auditing of a claim against the county of Hew York, by the board of supervisors, is an allowance of the claim, and when funds are provided for its payment, no further auditing is required. Such auditing is conclusive upon the board and their successors; and no subsequent board of supervisors will be authorized to require the same to be audited a second time.
The act" of the legislature of 1872, creating the board of audit, &c,, (Laws of 1872, ch. 9,) authorized the comptroller of the city of Hew York .to make payment of the claims remaining unpaid for 1871, for supplies and materials furnished during that year, for the purposes of the various departments of the city, and for that purpose to issue bonds, on which money was to be raised. But it did not provide means for the payment of any claims audited by the board of supervisors of 1871, and remaining unpaid, for the wait of funds, but only authorized the comptroller to pay claims which should have been audited and allowed by the board of audit. If a claimant, whose claim was 'udited by the board of supervisors, in 1871, wishes such claim to be paid oV- of the fund arising from the sale of bonds under that act, he is required to ubmit it for auditing, as well as allowance, by the board of audit.
Such claimant is not obliged to submit his claim to that board; but if he d, es not, no provision is made by that act, for its payment. And until such clair, is audited by the new board, its payment by the comptroller is unauthorized.
The board of audit, &c., is not bound to pass and allow such a claim at the rate adopted by the board of supervisors. The board is to audit; and this duty they must perform. They cannot omit it, and allow the plqim without auditing.
Where any body of men is directed by lavy to audit a claim, it seems that an order of the court directing the amount at which such claim shall be allowed would be improper'; except in cases of salaries and claims where the amount
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to be recovered is fixed by statute. In other cases, the board which is to audit must settle the amount to be allowed.
It is a rule, applicable to the writ of mandamus, that if the rehjtor asks for more than he is entitled to, the application should be denied. *
THIS is an appeal from an order of the Special Term denying the relators’ motion for a mandamus directing the respondents to audit and allow the claim of the relators for plumbing and gas-fitting work, and materials furnished at the hall of records, in the sum of $3,572.18, with interest thereon from the 26th day of June, 1871.
The relators alleged that they were, and still are, co-partners in the business of plumbing and gas-fitting in the city of New York, and at divers times during the year 1871, at the instance and request of the comptroller of the city and county of New York, performed work and labor, and furnished materials in the course of their business, in and about the hall of records, in said city, to the value of $3,572.18. That the bill of items for such work, labor and materials annexed to the moving affidavit was duly rendered, and vouched as required by law, and was, on the 26th of June, 1871, audited and allowed in the amount hereinbefore set forth, by the board of supervisors of the said city and county of New York, and by such board declared to be a legal county charge; and the comptroller of said city and county was, by proper resolution of said board of supervisors, authorized and instructed to pay the same in such amount from “the proper appropriation therefor.” That no part of such claim had, however, been paid to the relators, but the whole amount thereof still remains due and payable; that the prices charged for such work, labor and materials were fair and reasonable in their character. That the relators, in pursuance of the act creating the board of apportionment and audit, and transferring jurisdictional power over claims of the character of the relators’ of the year 1871, remaining unpaid to said board, petitioned the said board of appor
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tionment and. audit, to allow their said, claim ‘ by the concurrent votes of all the members thereof,” in the amount in which the same was audited, and. allowed by the board of supervisors. That the said board of apportionment and audit refused and neglected to allow said claim, or to take any action thereupon whatever. In consequence of such refusal to act upon the claim of the relators, an order to show cause why a peremptory writ of mandamus should not issue against the respondent was granted upon the 14th day of August, 1872, returnable on the 3d monday of August, 1872. The motion under such order was argued before Justice Leonard, on the 13th of September, 1872. Upon such argument, the respondents presented affidavits of R. G% Hatfield, Timothy Brien and Gfeorge H. Kitchen, touching the merits and bonafides of the relators’ claim. The relators’ counsel thereupon objected to the consideration of such affidavits, alleging their inadmissibility, inasmuch as the action of the board of supervisors in the audit of the relators’ claim, resulting in the ascertainment that the amount thereof was justly due, and that the same was a “legal county charge,” was a judicial determination, and in effect a judgment final and conclusive ; and that therefore it was not competent for the board of apportionment and audit to re-open and examine anew the question of merits. In addition to this objection to the consideration of the affidavits referred to, upon the ground of incompetency, the counsel for the relators further objected to them upon the ground that they were insufficient, vague and defective, inasmuch as the proceeding herein was equivalent to a proceeding under an alternative writ of mandamus; and the affidavits were substantially a return to such a writ, and should set forth the facts relied upon with certainty, and unequivocally deny the material allegations presented affirmatively. These objections the court below overruled, and on the 20th of September, .1872, made an
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order denying the motion for peremptory writ of mandamus.
Charles W. Brooke, for the appellants.
I. The audit and allowance of accounts against the county, by the board of supervisors, who had authority to make such audit and allowance, is a judicial determination, conclusive upon themselves, and upon their successors. (Sup ervisors of Chenango v. Birdsall, 4 Wend. 453 . Supervisors of Onondaga v. Briggs, 2 Denio, 26 , 39. The People v. Supervisors of Schenectady, 35 Barb. 408 . The People v. Stout, 23 id. 355. The People v. Ames, 19 How. Pr. 551 . Huff v. Knapp, 1 Seld. 65. The People v. Champion, 16 John. 61 . The People v. -, 19 Wend. 16 . Brady v. Supervisors of N. Y., 10 N. Y. 260 .)
II. The effect of the act of January 30,1872, is merely to make the board of apportionment and audit successor to the board of supervisors, so far as the claims therein referred to are concerned; the audit and allowance by the board of supervisors is as binding upon the board of apportionment and audit, as such action would be upon subsequent boards of supervisors; it was not meant that where a claim had been regularly audited and allowed, and thus became a legal debt of the county, the board of apportioment and audit should go through with the formality of a re-audit. (See cases above cited; The People ex rel. Cornell v. Norton, 12 Abb. Pr., N. S., 64; The People ex rel. Kelly v. Haws, 12 Abb. 192 .) In the case of The People ex rel. Cornell v. Norton, the court house commissioners occupied relatively the same position to the board of supervisors as does the board of apportionment and audit in this case; there, the claim of Cornell had been “audited and allowed” by the board of supervisors, and found to be a “legal county charge,” and the comptroller directed to pay it, just as in this case; before its payment in full, however,
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the legislature created a new board of commissioners, and delegated to them all the powers theretofore existing with the board of supervisors, including the power to audit and allow claims for the construction of the court house; upon the motion for peremptory writ of mandamus, the commissioners interposed “that the claim had not been submitted to them for audit and allowance.” Judge Sutherland thereupon said: “The bill of the relator having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and pronounced correct by the auditor, and paid in part by the comptroller, I do not think the relator was called upon or bound to present it, or the balance due on it, to the commissioners, for a re-auditing by them.” In the latter case, the court decided that under the provisions of section 6, of the act of 1857, entitled ‘ ‘ An act relating to the board of supervisors, &c., of New York,” (2 Laws of 1857, ch. 590,) the comptroller has no power to examine and disallow county charges which had already been examined and allowed by the board of supervisors; but this power in that respect is limited to the examination of the vouchers. It seems the board of apportionment and audit has no such power, and is likewise limited.
III. Even had the board .of apportionment and audit the power to re-audit; they would be compelled to reach the same result as did the board of supervisors—as the action of the latter board was. a judicial determination of the fact, that the relator’s claim is a legal county charge, and was conclusive upon them and their successors. Inferior jurisdictions, such as boards of supervisors, which derive their power from statute, have no power or authority to review, reverse or annul their own judicial action when it has once been legally exercised. (Moses on Mandamus, 125.) Nor has the successor of such board that power, where a board of supervisors have, by a legal quorum of their members, voted upon a reso
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lution, and such, vote has been entered by their clerk in the book oí records required to be kept by them; they have exhausted their discretion over that subject, and have thereby executed a judicial act, which is, in effect, a judgment final and conclusive as to any power they can exercise over it, by way of review or reversal; it seems. (The People v. Supervisors of Schenectady, 35 Barb. 408 .)
3Y. The act of January 30th, 1872, creating the board of apportionment and audit, provides in the 2d section, that “the said comptroller is hereby authorized and required to make payment of the claims remaining unpaid,” “for salaries and wages of employes of the various departments of the city and county of New York,” for the year 1871, as well as other claims, of which kind is the relators, as the said salaries, wages, claims, &c., “shall be audited and allowed by the concurrent vote of all the members of said board of apportionment and audit.” The powers of the board under this act, like those of the board of supervisors, are both judicial and ministerial—the latter consequent upon the former, the one expressed by the term “audit,” the other by the word “ allow.” The judicial function has been exercised finally by the board of supervisors, the ministerial remains to be exercised; as the board of supervisors have no further power, its successor, the board of apportionment and audit, must exercise it.
Y. “ Where boards of supervisors exercise both judicial and ministerial functions, and they have gone forward and performed the judicial act; and the result of such act raises an obligation upon them to perform a ministerial act, which they refuse to perform, a mandamus is the proper remedy to compel performance on their part.” (Moses on Mandamus, 125. Huff v. Knápp, 1 Seld. 67.) And so far has the law considered that the action, in this respect, of a board of' supervisors is binding upon its successors, that the courts have uni
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formly held that “if a writ of mandamus is granted against a board of supervisors, and their term of office expires, it will devolve upon their successors to obey the writ.” (The People v. Champion, supra. The People v. Collins, Id.) In the case of the Supervisors of Chenango v. Birdsall, ( 4 Wend. 460 ,) the court, upon this subject, says: “The idea that one board of supervisors may adjudge the matters passed upon by a former board, is not to be tolerated.”
VI. The act of January 30th, 1872, provides a method for payment of the relator’s claim, which renders the action of the board of apportionment and audit thereupon, in its allowance, his right, and therefore said board should be compelled to take such action as will entitle him to its benefits. (The People v. Mead, 24 N. Y. 123 .)
VII. That the claim of the relators was a “legal county charge,” as reference to the Revised Statutes will clearly demonstrate; and hence it was properly submitted to the board of supervisors for audit and allowance. (1 R. S. 367, 386.)
VIII. The relator has no remedy by action: therefore his proper and only remedy is by mandamus. (Huff v. Knapp, 1 Seld. 67. Brady v. Supervisors of New York, supra. Chase v. Supervisors of Saratoga, 32 Barb. 603 .)
IX. The action of the board of supervisors, in the audit and allowance of the relators’ claim, having been final and conclusive as to its merits, and in effect a judgment, the board of apportionment and audit had nothing whatever to do with the merits or bona fides of such claim; and hence the affidavits of Hatfield, Brien and Kitchen were clearly inadmissible upon the argument of the motion for peremptory writ of mandamus, as the court, like the board of apportionment and audit, was precluded from consideration of the questions presented by such affidavits.
X. Even were the merits or bona fides of the relators’
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paid only upon audit and allowance by the board thus claim susceptible of examination, the facts presented were insufficient, in form of statement and substance, to disturb the judicial action of the board of supervisors.
XI. The order to show cause in this case, was in the nature of an alternative mandamus, and if the affidavits referred to were admissible at all, they can only be regarded in the light of a return to such alternative writ, and stand as the second pleading in the action or proceeding, and must be good, tested by the ordinary rules of pleading, both in form and substance. Tested by these rules, the affidavits herein are clearly informal and insufficient. (Moses on Mandamus, 210.)
Richard O' Gorman, for the respondents.
I. The statute (Laws of 1872, ch. 9,) which creates the board of audit and apportionment clothes them with a discretion in auditing and allowing the claims brought before them. The language of the statute imports the exercise of judicial power by them; they are to audit and allow by the concurrent vote of all the members of the board. If, as in the case of salaries, the amount of a claim be fixed by a statute, or if the amount of a claim be fixed by a valid contract, it would be the duty of the board to allow the claim at the amount fixed by such statute or contract. But in this case the amount due the relators is fixed by no contract or statute, and their claim is for the quantum meruit. Clearly, in such a case, it is the duty of the board to ascertain by competent testimony, the value of the work and materials furnished, and to allow only such sum as they find to be the value thereof.
II. The allowance of the relators’ claim by the board of supervisors does not exclude the board of audit from examining the relators’ claim on the merits, or bind said last named board to allow the sum named in the resolu
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tion of the supervisors. 1. It is true that the allowance of a claim by a board of supervisors acting within their jurisdiction, when the subject matter thereof is a legal charge against the county, is conclusive upon the county treasurer, and he is bound to pay in accordance with such allowance, from the proper appropriation. But the board of audit, the respondent herein, does not bear the same relation to the board of supervisors as the county treasurer. The treasurer is a mere ministerial officer, having the custody of the funds of the county, and bound to disburse them as the supervisors shall lawfully direct. But the board of audit is clothed with other and different functions and powers. It is not the custodian of funds of the county; it has the judicial power to allow and audit certain claims arising in 1871, and upon such audit and allowance the comptroller is directed to pay from the fund provided by the act. (Laws of 1872, ch. 9, § 2.) Therefore, in respect to the claim of the relators, and all similar claims arising in 1871, the functions of the board of supervisors, as to the audit and allowance thereof are superseded, and the power to audit and allow is vested in the board of audit and apportionment. 2. The relators having furnished work, laber and material in 1871, the supervisors in that year directed the payment of $3,572.18 therefor; but that direction could not be enforced because there was no money out of which payment could be made, the appropriations having been exhausted. The direction to pay was therefore ineffectual and nugatory. For the relief of the relators and others similarly situated, the statute, (Laws of 1872, ch. 9,) was enacted providing for the payment of claims remaining unpaid for supplies and materials furnished in that year. The statute creates a new tribunal, to which such claims are to be submitted, and provides that such claims shall be paid only upon audit and allowance by the board thus
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examination for audit and allowance upon the merits thereof. If the relators had relied upon the aEowance by the board of supervisors, they might argue that such' aEowance is conclusive in a proceeding to compel the county treasurer to pay, or in any other proceeding to enforce that aEowance. But by asking a new judgment before a new tribunal, they abandoned the former judgment, and now subject themselves to the conditions and requirements upon which the judgment of the new tribunal is conditioned. The intent of the legislature, that such claims shordd be examined upon the merits, notwithstanding any former aEowance by the board of supervisors, is clearly evinced in the statute. If it is intended that audit and aEowance by the board of supervisors should preclude examination by the board of audit, then the statute would have provided directly, that the comptroEer should pay claims against the county in accordance with the audit thereof by the board of supervisors. If the board of audit cannot examine the claim of the relators on its merits, then it has no function whatever to perform in respect to this class of claims, and the legislature has prescribed an absurd and idle f ormaEty, when it directed that such claims should be audited and aEowed by the concurrence of aE the members of the board. The relator, hi asking the court to compel the board to aEow the claim as fixed by the resolution of the board of supervisors, without examination on the merits, is seeking to compel them to aEow a' claim which they have not audited, and ask the court to compel them to violate the law by omitting to audit or examine a claim previous to aEowing the same. If the board should aEow the claim without having audited it, they would omit a duty which the statute makes obEgatory upon them. The court wiE not compel them thus to violate the law defining them duties. 3. The resolution of the board of supervisors aEowing the relators’ claim is void, and cannot be enforcéd. The board of
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supervisors have no power or jurisdiction to allow claims as county charges for work and materials which, as is' proven in the case at bar, have never been furnished. Nor have they jurisdiction to allow claims at prices grossly and fraudulently in excess of the market value thereof ; such an audit will not be held to be bona fide or be enforced. A county treasurer may refuse to pay out the county funds for claims not lawfully chargeable against the county, even when payment has been directed by the board of supervisors. (People v. Lawrence, 6 Hill, 244 .) Nor will a mandamus lie to compel the county treasurer to pay a claim, audited and allowed by the supervisors, the subject matter of which is a legal county charge, when the debt has not been lawfully incurred. (Pe ople v. Stout, 23 Barb. 354 .) In the last cited case the board of supervisors had directed the payment of a bill for painting court rooms, amounting to $300. . The county treasurer refused to pay as directed, and a mandamus to compel him to make such payment was denied, upon the ground that the debt had not been lawfully contracted. So in the case at bar, no debt to the amount of $3,572.18 has been lawfully contracted by the county with the relators; therefore the resolution of the board of supervisors directing payment, could not be enforced by mandamus against the county treasurer, nor against the board of audit, the respondents herein.
III. The claim of the relators is not included within the class of claims which the statute authorizes the respondents to audit. Section 2, chapter 9, of the laws of 1872 provides for the audit and payment of claims remaining unpaid for salaries and wages of employees of the various departments of the city and county of New York, for the year 1871, and of claims remaining unpaid for supplies and materials furnished during said year for the purposes of the various departments of said city. No provision is made in the law for the audit and
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payment of claims remaining unpaid for supplies and materials furnished to the county, nor do any of the class of claims enumerated in the statute include the relators’ claim.

The relators ask for a mandamus commanding the board to pass upon and allow the claim of the relators for work and labor and materials done and furnished to the hall of records, in the year 1871.

The account of the relators had been audited by the board of supervisors in June, 1871, and the comptroller was directed to pay it. That was not done by the comptroller, for want of money appropriated therefor, and the account remained unpaid.

By the act of 1872, (ch. 9,) the board of audit, &c., was created. This board was directed to make appropriations for the expenses of the city and county of New York, from the 1st of January, 1872, to the 30th of April, 1872. By the second section, the comptroller was authorized to make payment of the claims remaining unpaid" for 1871, for supplies and materials furnished during that year, for the purposes of the various departments of said city. To provide for such payments the comptroller was authorized to issue bonds, on which money was to be raised.

The auditing by the board of supervisors in 1871, was an allowance of the claim at that time, and when funds are provided for the payment of such claims, no further auditing would be required. No subsequent board of supervisors would be authorized to require the same to be audited a second time. The first auditing would be conclusive upon the first board and them successors.

But the statute of 1872 did not provide means for the payment of any claims audited by the board of supervisors of 1871. That act provided for a sale of bonds for a specific purpose, and only authorized the comptroller to pay claims which had been audited and allowed

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by the board of audit. If the relator wished his claim to be paid out of the fund provided by the sale of bonds under that act, he was required to submit such claim for auditing, as well as allowance by that board. The comptroller could pay no other claim from such fund, and the board could allow no claim which they did not audit. The relators were not obliged to submit their claim to that board ; but if they did not, no provision was made under that act for its payment; and until such claim was audited by the new board its payment by the comptroller was unauthorized.

The relators claim that the board should pass and allow the claim at the rate adopted by the board of supervisors. Such was not the direction of the statute.

• The board was to audit. This duty they must perform.They cannot omit it, and allow the claim without auditing.

Where any body is directed bylaw to audit a claim, I very much doubt the propriety of any order of a court directing the amount at which such claim should be allowed, except in cases of salaries and claims where the amount to be recovered is fixed by statute. In other case's, the board to audit, must settle the amount to be allowed.

The judge who heard this motion, suggested that a mandamus might issue directing the board to audit the claim. This the relators would not accept. / This .was more favorable than they were entitled to, under their" application. It is a rule applicable to the writ of mandamus that if the relator asks for more than he is entitled to, the application should be denied. -

I think the order appealed from was correct, and should be affirmed, with $10 costs.

Brady, J. The relators applied to the board of audit created by the act of 1873, to which the chief justice refers in his opinion, and their application was subject

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to the rules of law by which that tribunal must be governed. It became their duty to audit this claim; that is, to hear, to examine, to pass upon, to settle and adjust it; and in order to do so, it was necessary that some deliberation should be had with reference to it. The board accepting such evidence as, in the exercise of their functions, would be sufficient to establish its validity. They doubtless might regard the former audit as an adjudication, and seek nothing further; but they were not obliged to do so. The comptroller, under the act, was not required to pay any other than the claims audited by the new board, and the relators, when they sought to limit them in the exercise of their judicial duty, placed themselves beyond the pale of the statute. They could only avail themselves of its provisions by compliance with its terms.

[First Department, General Term, at New York,

November 4, 1872.

Ingraham and Brady, Justices.]

I think the order appealed from should be affirmed, and concur, therefore, with the chief justice.

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