People ex rel. Merritt v. Lawrence — 6 Hill & Den. 244

Majority

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The People, ex rel. Merritt, vs. Lawrence, Chamberlain of the City of New-York.

Headnote

Boards of supervisors, in auditing and allowing accounts, are limited to the jidivers conferred upon them by statute.

If the subject matter of the account be within the jurisdiction of the board of supervisors, and they allow it, the county treasurer has no rigiit to refuse payment on the ground that the allowance was for too much, or was made upon insufficient evidence.

Otherwise, If it appear on the face of the account that the subject matter was not within the jurisdiction of the board.

Accordingly, where a justice of the peace, after being impeached before a county court, was tried and acquitted, and then presented a claim against the county for the expenses of his defence, which the board of supervisors audited and allowed ; held, on motion for a mandamus to compel the treasurer to pay, that the board of supervisors exceeded their jurisdiction in allowing the claim, and that the treasurer did right in withholding payment.

Even had the allowance by the board been authorized, and payment improperly withheld, the remedy of the claimant was not by mandamus, but by action against the treasurer.

The relator was one of the special justices in the city of New-York, and was. impeached and tried before the county court. (Const. Art. 4, § 7.) He subsequently presented to the board of supervisors of the county an account for counsel fees and other expenses attending his defence on the impeachment, and the board audited and allowed the account at $1061,48. The account and the resolution of the

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supervisors auditing the same, were presented for payment by the relator to the chamberlain of the city, who by virtue of his office is the county treasurer. (1 R. S. 370, § 29.) The chamberlain refused to pay.

D. Graham & J. T. Brady, for the relator,

on the return to an alternative mandamus, moved for a peremptory writ, commanding the Chamberlain to pay the account as audited by the supervisors.

P. A. Cowdrey opposed the motion.

If the relator has a legal right to the money which he claims, there is some reason for saying that his remedy was by action, and not by the writ of mandamus. (Boyce v. Russell, 2 Cowen, 444; Ex parte Lynch, 2 Hill, 45 ; id. 46 , note; Ex parte The Fireman’s Insurance Company, ante,p. 243.) But it is not necessary to decide that question, for he has no title to the money. Although the fact does not appear in the papers, it was said, ahd I shall assume, that the relator was acquitted of the charges brought against him in the court of common pleas. Still, the expenses of his defence have not been made a charge upon the county, and the board of supervisors had no authority to allow the account or any part of it. They have only such powers as have been conferred upon them by the legislature, and there is no statute which gives any color for saying that they could indemnify the relator against the expenses of his defence. (1 R. S. 366, § 4; id. 385, § 3; Slat. 1838, p. 314, § 1.) It is not unlike the case of a party indicted for a crime, and acquitted on the trial. He gets no indemnity from the public treasury. And whatever appearance of justice there may be 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 authority to allow the claim, I agree that it would have been the duty of the treasurer to pay, without inquiring whether the account was

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allowed upon insufficient evidence, or at too large an amount.^[1] 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. Their act was a mere nullity, and it was the duty of the treasurer to withhold payment. As we entertain no doubt upon this point, it is unnecessary to consider the other questions which were made upon the argument.

Motion denied.

(a) (a) See The People ex. rel. Onderdonk v. The Supervisors of Queens County, ( 1 Hill, 195 .)