People ex rel. Sage v. Schuyler

Headnote

Where an appropriation, within the power of the Legislature, is made by it, no inquiry is admissible as to the reasons, or information upon which it acted.

Where a work of public necessity is done ynder an invalid contract, or even voluntarily, without the authority of any public officer, and the Legislature appropriates money to pay for it, a disbursing officer cannot refuse to apply the money to the purpose for which it was appropriated, on the ground that the State was not originally under any legal obligations to make payment, or that the Legislature was not sufficiently informed of the facts; the only question for such officer is whether the appropriation was for the purpose claimed; when this is ascertained Ms duty is ministerial only.

The canal commissioners having entered into a contract with M. to. do certain work, which was of public necessity, and M. having refused to go on with the work because of the refusal of the canal auditor to audit and allow certificates of the commissioners, on the ground that there was no unexpended appropriation to pay them, the relator, at the request of the commissioners, for the purpose of expediting the work, advanced the money required to complete it, in reliance upon a future appropriation by the Legislature, and the certificates were assigned to him. The acts of the commissioners in respect to the work were communicated to the Legislature, from time to time, in the official reports of the commissioners, which stated the amounts expended and the purposes of the expenditure in accordance with the facts. In 1875 a budget was made up in the auditor’s office of out-standing certificates, issued for work done on the canal, and furnished to the Legislature when engaged in making an appropriation to pay the same ; in which budget the certificates so held by relator were specifically described and included, and an appropriation was made to the precise amount of the budget (§ 1, chap. 268, Laws of 1875). In proceedings to compel the auditor by mandamus to draw his warrant for the amount of the certificates ; held, that the facts authorized a finding, that the act making an appropriation was passed with full knowledge on the part of the Legislature, and with'the intent to provide specifically for the payment of said certificates ; that the fact that the appropriation was made for this purpose having been established, the question of ratification or knowledge of the Legislature of the facts relating to the contract, and of the validity of the contract were unimportant; and that the relator was entitled to the relief sought.

Also held, that said appropriation was not repealed by the repealing clause m the act of 1876 (§ 1, chap. 425, Laws of 1876), proriding “-for the completion or cancellation of all pending contracts” for new work upon or extraordinary repairs of the canals.

People ex rel. Sage v. Schuyler ( 17 Hun, 106 ), reversed.

People ex rel. Wasson v. Schuyler ( 69 N. Y., 242 ), distinguished.

Appeal from judgment of the General Term of the Supreme Court, in the third, judicial department, reversing a judgment in favor of relator, entered upon the report of a referee, and awarding judgment absolute against relator. (Reported below, 17 Hun, 106 .)

This was an application for a peremptory writ of mandamus, requiring defendant, as auditor of the canal department, to issue his warrant on the treasurer of the State for the amount of, and to pay certain certificates issued by the canal commissioners. An alternative writ was issued, to which return was made. The relator traversed the issues tendered thereon, and the matter wits referred to a referee to hear and determine.

The facts as found by the referee are substantially" as follows :

Prior to 1848, the State had constructed a canal reservoir and feeder in the town of Nelson, county of Madison, known as the Erieville reservoir, the waters of which passed down Erieville (Nelson) creek into Chittenango creek, the outlet of Cazenovia lake, at a point a few rods from the lake, and thence down the Chittenango creek to the “ Rome level ” of the Erie canal; a few rods below the mouth of the Erieville creek, there was a dam across the Chittenango creek, owned by individuals, which furnished power to their mills on the banks of the creek. In 1848 the canal commissioners, temporarily appropriated the waters of Cazenovia lake, and its outlet, Chittenango’ creek, to furnish an additional supply of water to the “ Rome level,” and for such purposes erected another dam or bulk-head across Chittenango creek, above the mouth of Erieville creek, which was so arranged that when the water of the lake was low, the water of the Erieville reservoir and creek, stopped by the lower dam, could pass through the gate of the upper

dam back into the lake, and there be stored until needed for the canal. The canal commissioners at the same time caused gates to be constructed in the lower dam, so that they could control the supply of water at that point, and thereafter down to 1854, the State, by means of these dams and the gates therein, continued to control and use the reservoir, lake and creeks, and controlled and regulated the flow and passage of water over the lower dam for the purpose of feeding the canal. On September 13,1854, the canal board, by resolution, authorized the permanent appropriation of the water of Cazenovia lake, and adopted maps, plans and estimates, converting the lake into a canal reservoir, to be used in connection with the Erieville reservoir and the two creeks as a feeder to the Erie canal, and the action of the board was reported to the Legislature ofT855 by the canal commissioners, in their annual report for the year 1854. June 5, 1855, the canal commissioners permanently appropriated the waters of the lake and creeks,' passing over the lower dam, and instituted measures to carry out the plans adopted by the canal board. July 10, 1855, the canal board changed somewhat the original plan, and adopted what is known as the “ citizens’ plan,” which retained the lower dam at its original height, instead of lowering it, upon condition that certain owners of the water-power should execute a release to the State for damages, which was done accordingly. The other property owners applied for and obtained their damages in consequence of such appropriation, and ever since that time the State has exercised control over the waters passing over the lower dam and other dams erected on the same site, making the use thereof by the mill owners subordinate to the requirements of the canal. In 1855, the canal commissioners, in pursuance of the plan finally adopted by the canal board, constructed a new dam on the site of the old lower dam, and while the same was in progress reported their action and that of the canal board in reference thereto, and the cost of its construction, to the Legislature of 1856, in their annual

report for the year 1855; and the new dam remained under the control of the canal commissioners until it was carried away by a flood in 1865. The canal officers declining to build another dam, a new one was built by the mill owners on the same site in which, however, a gate was constructed by the canal commissioners, and by means thereof they controlled the flow of water the same as before, until this dam was also carried away by a flood in March, 1872.

“ Tho mill owners having refused to erect another dam, the canal commissioner, then in charge deeming it necessary for the interest of the State, and for the proper use and control of the waters of the Erieville reservoir and of the lake, and intending to appropriate the land or site of the old dam, if such appropriation had not already been made, to the use and benefit of the State, for the purpose of erecting a new dam, Wherewith to control and regulate the supply of water from the reservoir and lake, examined said site and directed the engineer in charge to take possession thereof (which he did) and announced to the property owners interested the appropriation thereof, to which they consented ; and the commissioner caused a map, plan and estimate for the construction of a new dam on the old site, to be made, and presented the same to the canal board.” The canal board shortly afterward, May 8, 1872, “duly adopted the said plan and estimate,” “and authorized the canal commissioners to advertise and enter into a contract for the construction of the dam, provided the property owners should make a release satisfactory to the attorney-general.” The parties in interest “ executed and delivered to the canal commissioners a valid release in writing of all' claims against the State, for damages on account of such appropriation and use of the mill site and water power,” which was accepted and placed on file in the office of the auditor of the canal department. The commissioners advertised in the State and local papers the letting of the work for the 21st day of May, 1872, and received various bids for the work, and, among others, one from Henry J. Mowry. The next day, May 22, 1872, the

■canal board reconsidered the resolution of . May eight, and laid the same on the table. December 18, 1872, the board of canal commissioners assuming to act under •chapter 343 of the Laws of 1872 adopted the same plan, directed the reconstruction of the lower dam on the old site, accepted ,the bid for said work put in by Mowry, and awarded the contract to him; and on the same day made and executed a contract with him for the construction of the dam. The canal board, on the 14th day of February, 1873, appointed a committee to “ examine the matter of rebuilding the dam,” and report thereon ; such report was made on the 19th of March, 1873, ■containing a full history of all the previous proceedings of the State officers, the board of canal commissioners and the canal board; said board accepted the report, adopted the recommendation of the committee, and approved the action of the commissioners. The canal commissioner in charge ■on March 3, 1873, in pursuance of the contract, upon the ■estimate of the resident engineer, duly issued his official certificate to the contractor, directed to the auditor, certifying there was due to the contractor the sum of $714 upon the ■contract; and April 7, 1873, in like manner, duly issued to the contractor, another certificate, certifying there was then due to him the further sum of $1,292 ; the auditor refused to audit and allow these certificates, “ on the ground that there were no moneys in the treasury applicable to their payment ; ” and the contractor was then informed that “ there wore no funds to pay him for the construction of the dam under his contract.” He declined to go on with the work, until provision was made for payment as it progressed in accordance with the terms of his contract; and the work was accordingly suspended. The canal commissioner in charge, in October, 1873, applied to the relator and requested him to make provision for advancing the money to the contractor, upon his official certificates under the contract, until provision could be made for the payment thereof at the next session of the Legislature, stating to the relator that the

work was necessary for the interest of the State. In com- • pliance with such request, the relator and one Eeuben Parsons, obligated themselves to advance and pay to Mowry the-money as earned under his contract with the commissioners, upon the assignment by the contractor to them of the certificates of indebtedness issued by the commissioners under the contract. At the request of the canal commissioner in charge, the contractor then proceeded with and completed the work in pursuance of the contract; and he received the. amount he was entitled to, which was advanced and paid from, time to time as the work progressed, by the 'Bank of Cazenovia, on the promissory notes of the relator and Parsons,. which were subsequently paid to the bank by the relator. About the 25th of July, 1874, and within ninety days after the completion of the work, the resident engineer, in pursuance of the terms thereof, made and presented a final, account to the division engineer, who duly approved and delivered the same to the canal commissioner, and the latter thereupon issued and delivered to the contractor a third certificate for $7,734.61, the balance due upon the contract, in addition to the amounts of the former certificates. , The-three certificates -were duly assigned and transferred to the-relator. “ The continuance of the work in the fall of 1873, and the completion of the lower dam was a public benefit and necessary to enable the State to use and control the waters of the Erieville reservoir and Cazenovia lake for the purpose of supplying water to the Erie canal. The work was done in good faith at reasonable prices, and is of great use and benefit to the State ; and the State by means thereof has ever since had exclusive control of the waters passing; over the dam. The relator had no personal interest in firework or the dam, otherwise than under his collateral con- ■ tract made at the request of the canal commissioner, and he ■ procured the money to be advanced and paid to the contractor, simply to forward a public work, at the request of a., public officer, and upon his representation that it was a public benefit and would be promptly repaid by an appropria

tian for that purpose, at the next session of the Legislature.’* “ The canal commissioner in charge, in his annual report for the year 1872, to the Legislature of 1873, stated the facts as to the carrying away of the old dam, the necessity to the State of the maintenance of the dam, and the action of the canal board and the commissioners in regard thereto, and in reference to contracting for its rebuilding.” And after the completion of the work, the commissioners, in their annual report for the year 1874, to the Legislature of 1875, reported the aggregate amount of the three certificates of indebtedness, as an item of public expenditure as follows : “ For rebuilding dam at Cazenovia, $9,740.61.” “ The auditor, in 1875, caused a budget to be made of the items for which appropriations were required to be made to pay claims then outstanding in the canal department, and among others for certificates of indebtedness issued for work done on the Erie canal, which amounted, in all, to $107,004.03 ; there was included therein and. specifically stated each of the three certificates in question, and the amounts thereof respectively formed a part of said sum. ' The auditor also caused to be computed the interest due on the certificates of indebtedness, including the three in question, which amounted to $12,973.08, and caused an act to be drawn and presented to the Legislature, containing said two items of appropriation, which was adopted and passed accordingly by the Legislature. (Chap. 263, Laws of 1875.) In reference to the certificates in question, the referee found that “the act was passed with full knowledge on the part of the Legislature of the facts in reference to the building of the dam, and with intent to ratify the same, and to provide moneys for the payment of the certificates.” The money thus appropriated was collected and paid into the treasury, and thereafter, and before the commencement of this action, the certificates were duly presented to the auditor and demand made that he issue his warrant therefor, which he refused.

Further facts appear in the opinion.