People ex rel. Gardenier v. Board of Supervisors

The relator obtained an alternative writ of mandamus directed to the board of supervisors of Columbia county, commanding them to pass upon, audit, and allow a claim of $4,013.05, or so much of the same as shall be found due the relator for services and expenses in proceedings in apprehending and extraditing one John H. W. Cadby from the British territory in North America, under the requisition of the governor of New York, made upon the president of the United States, and by him upon the British government in Canada. The alternative writ shows the issuing of a warrant by a magistrate of Columbia county, in the state of New York, against the said Cadby, for an alleged forgery,—a felony under the laws of this state,—and that the said John H. W. Cadby had lied from the state of New York, and sought an asylum in the dominion of Canada. That said crime was extraditable under treaty stipulations between the United States and Great Britain. That the said relator, as the district attorney of Columbia county, followed the said fugitive into Canada, and then instituted proceedings in the courts of the dominion for the arrest and detention of said fugitive. That various proceedings were had in different courts and before different judges in the dominion of Canada by the relator, which finally resulted in lodging the said John H. W. Cadby in a British prison, in the prosecution of which large expenses were incurred in traveling by the relator, and board and subsistence furnished him and various persons in his employ as assistants, detectives, attorneys, and various other expenses particularly enumerated or stated in general terms in the schedule annexed to said writ, and referred to therein, and constituting in all the amount claimed by the relator. The writ also showed that all these expenses were paid, and liabilities incurred, before the granting of a requisition by the governor of the state, or the president of the United States, and that no part of said expenses was incurred by the relator as the agent of the governor in executing the said requisition. The writ also recited

The demurrer in this case is to the entire writ, and all the allegations of fact and law therein, and raises the question whether any of the claims set forth in the writ constitute such a legal liability to the relator from the county of Columbia as that the board of supervisors may be compelled to audit and allow the same. The demurrer is to the whole writ, and not to any distinct or complete separate statement of fact contained in it, (Code Civil Proc. § 2076,) and the writ must therefore be considered as a whole. To sustain this writ it must appear upon the face of the same that the relator has a clear right to the relief demanded. U. S. v. Bank, 1 Cranch C. C. 7 ; Smith v. Railroad Co., 67 Ill. 191 . Nor will it be granted if the relator has a legal remedy. People v. Judge, 1 Mich. 359 ; State v. Graves, 19 Md. 351 . Nor will it be granted to control the discretion of an officer or board where a discretion is by law conferred upon such officer or board. Magee v. Supervisors, 10 Cal. 376 ; Ferry Co. v. Boston, 101 Mass. 488 . Nor to compel the allowance of a claim by a board or officer when they have a discretion as to the amount of the claim to be allowed for services. Hull v. Supervisors, 19 Johns. 259 ; Ex parte Benson, 7 Cow. 363 . The determination of the questions raised upon this demurrer must therefore depend chiefly upon the question whether the claims made by the relator in this writ are such as, within the provisions of law relating to the office and duties of district attorneys and their compensation, the charges made in this writ and referred to in the schedule thereto annexed, are valid and legal charges against the county of Columbia, and such as the board of supervisors of that county are by law compelled to audit, allow, and provide for payment.

That the district attorney in this case exhibited commendable zeal and vigilance in prosecuting and bringing to justice an offender against the law goes without saying. By section 89, c. 12, art. 7, pt. 1, Rev. St., it is provided that “it shall be the duty of the district attorney to attend the court of oyer and terminer and jail delivery and general sessions to be held from term to term in the county for which he shall have been appointed, and to conduct all prosecutions for crimes and offenses cognizable in such courts.” It is claimed by the relator that, as an incident to the right to conduct this criminal prosecution under the power conferred in this section, the relator, as district attorney, was authorized to institute and carry on at the expense of the county

But by section 51 of the Penal Code it seems clear that the legislature has by express enactment prohibited the board of supervisors from allowing this claim. That section prohibits any officer of the state from asking or receiving any fees or compensation of any kind for any service rendered or expense incurred in procuring from the governor of the state a demand upon the executive authority, of a state or territory, or of the United States, or of a foreign government, for the surrender of a fugitive from justice, or for any services rendered or expenses incurred in procuring the surrender of such fugitive, or of him to this or for him