People ex rel. Welch v. Nash

Headnote

The board of supervisors of a county has no power to change the method of indexing deeds and mortgages prescribed by statute (chap. 199, Laws of 1843), or to transfer the duty or power of making the indices from the county clerk to another person, or to interfere with the custody of the records, vested by law (1 R. S., 375, § 52) in the county clerk, by authorizing another to use the records for the purpose of making indices. Accordingly, held, where the board of supervisors of 0. county, by resolution, authorized relator, then county clerk, to re-index the record of mortgages, etc., that an application for a mandamus to compel defendant, the relator’s successor in office, to allow the relator the use of the records for that purpose, was properly denied; that when relator ceased to be county clerk the duty of making indices, if necessary, devolved upon his successor.

Appeal from order of the General Term of the Supreme Court in the fourth judicial departnent, affirming an order of Special Term denying an application on the part of relator for a writ of mandamus.

The board of supervisors of Cattaraugus county, at its annual session in November, 1873, passed a resolution author

izing relator, who was then county clerk, to re-index all the recorded mortgages and miscellaneous records in his office upon a new plan, at a specified compensation. The relator’s term of office expired on December 31st, 1873, and defendant succeeded him in the office. The relator, before the expiration of his term, had procured the necessary books, and after defendant entered upon the duties of the office, demanded of him the use of the office and of the records for the purpose of prosecuting the work. This defendant refused. The relator thereupon made this application for a writ of mandamus to compel defendant to allow him the use of the records for such purpose.

The board of supervisors had power to contract for the re-indexing. (§ 53, art. 4, tit. 2, chap. 12, pt. 1, R. S.; Laws 1843, chap. 199; Laws 1838, chap. 314, sub. 3, § 1; Bright v. Suprs. Chenango, 18 J. R., 242; People v. Stoul, 23 Barb., 349 ; Laws 1865, chap. 479, § 2; Burnham v. Acton, 35 How., 48 ; Batz v. Mayor, etc., id., 130 ; Healey v. Dudlee, 5 Lans., 115 ; Calking v. Baldwin, 4 Wend., 668 ; In re Debaucene, 31 How., 337 ; § 3, art. 1, tit. 2, chap. 12, pt. 1, R. S.; People v. Suprs. of Dutchess, 24 Wend., 180 ; Boggs v. Caldwell Co., 28 Minn., 586 ; McClosky v. Cromwell, 1 Kern., 593; Beebe v. Griffing, 14 N. Y., 235 ; Johnson v. Berwell, 2 Hill, 239 ; Berley v. Rampacher, 5 Duer, 183 ; Main v. Green, 32 Barb., 448 ; Calkins v. Calkins, 3 id., 305; Sayer v. Wisner, 8 Wend., 661 .) Welch was an entirely competent person for the board to contract with. ( Williams v. People, 24 N. Y., 405 .) Defendant has no right to interfere. (§ 61, art. 2, tit. 2, chap. 3, pt. 3, R. S.; People v. Cunningham, 1 Den., 524 ; Wetmore v. Story, 22 Barb., 414 ; Mastertin v. Short, 35 How., 169 ; Harlen v. Huniston, 6 Cow., 189 .) The relator was entitled to a mandamus. (Strong v. Campbell, 11 Barb., 135 ; People v. Throop, 12 Wend., 183 ; People v. Mott, 1 How., 247 ; People v. Miner, 37 Barb., 466 ; People v. Steele, 2 id., 397; Richmond v. Pacific, 5 id., 280.)

The board of supervisors has no authority to act, except in cases where it is empowered by statute. (Chemung Canal Bk. v. Suprs. Chemung, 5 Den., 517 ; People v. Lawrence, 6 Hill, 244 ; People v. Suprs. Cortland, 58 Barb., 139 .)