Majority
p. 505The People, on the relation of Thomas Lawyer, district attorney of Schoharie, vs. The Supervisors of Schoharie.
Headnote
A district attorney is not entitled to charge for his attendance at an oyer and terminer, unless the attorney general also attends on requirement, &c.Motion for mandamus. The district attorney of Schoharie, in his account of services rendered, had taxed by a proper officer, eight days attendance at the courts of oyer and terminer, at the rate of five dollars per day, which the supervisors refused to allow, on the ground that he was entitled to make ¡such charge only when the attorney general also at
p. 506
tended. The district attorney insisted that the charge was proper, whenever a circuit judge attended, 2 R. S. 751, §7; and further,.that the supervisors had no discretion in the matter, their duty being to make provisions for the payment of his bill when taxed, and not to tax it; the taxation not belonging to them, 1 R. S. 383, § 95.
By the Court,
A district attorney is entitled to the allowance claimed in this case only when the attorney general attends the oyer and terminer on the requirement of the governor, of a judge of this court, or of a circuit judge. It is true, the supervisors have not the power to tax the bill of a district attorney; they must either make provision for its payment, or require a re-taxation. In this case, the facts appearing, no re-taxation is necessary.
Motion denied.