
    In the Matter of the Application of John J. Ryan, for a Mandamus Against the Board of Audit of the Town of Royalton, Niagara County, N. Y.
    
      (Supreme Court, Erie Special Term,
    
    
      Filed December, 1893.)
    
    1. Excise law—Commissioners.
    The majority of the board of excise has the right to call a special meeting at any time when the exigency of the case demands.
    2. Same—Attorney.
    Where the board of excise employs an attorney who acts from time to time as may be reasonable, his compensation is a town charge and shall be audited and paid.
    3. Same.
    Where the commissioners have entered upon the performance of their duties and, in consequence .of their action or non-action, they are assailed and charged with misconduct and wrong doing as a board and as commissioners, and it is sought to remove them.from office, it presents a case where the services of an attorney are reasonably necessary.
    4. Same—Mandamus.
    Where the relator has a clear legal right to have his claim audited, but the board of audit refuses to act upon it, mandamus may issue to set the board in motion and compel it to perform its statutory and legal duties.
    
      Motion for peremptory writ of mandamus to issue to the board of audit of the town of Royalton, Niagara county, N. Y., to compel them to audit an account of John J. Ryan, as attorney for the board of excise of said town.
    
      John J. Ryan, petitioner in person; G. W. Laskey, for the board of audit.
   Ward, J.

The petitioner, Ryan, is an attorney and counsellor of this court, practicing his profession at Medina, N. Y. In the year 1892, Barnard A. Mackey, David Snell and G-eorge Sayres were commissioners of excise for the town of Royalton, in Niagara county. Applications were made for licenses by various persons in the spring of 1892, to this excise board, and they were all refused by the board, two of them,, Mackey and Snell, having been elected as no license commissioners and refusing to grant any licenses whatever. The disappointed applicants for license made complaint to the county judge of Niagara county of these commissioners, and charged that they had been guilty of willful neglect of duty and of misconduct in office in not granting licenses in proper cases, and demanded their removal from office by the county judge under § 6 of chap. 401 of the Laws of 1892, being the “ act to revise and consolidate the laws regulating the sale of intoxicating liquors.”

This act took effect on the 30th of April of that year, and the application to remove the commissioners was made to the county judge on the 13th of July, 1892. On that day, the county judge issued an order directed to the said excise commissioners, and to each of them, and requiring them to show cause before him as such county judge at his office in the city of Lockport, on the 22nd day of July, 1892, at 2 o’clock p. m., why they and each of them should not be removed from the office of commissioner of excise for neglect of duty and misconduct in office. A copy of this order and the petition upon which it was granted was duly served upon each of the said excise commissioners.

On the 16th of July, 1892, Commissioners Mackey and Snell caused a notice in writing signed by them to be served on the other commissioner, Sayres, notifying him that there would be a meeting of the board of excise of the town of Royalton, Niagara county, New York, on the 19th day of July, 1892, at eleven o’clock, A. M., at the law office of George D. Judson in the village of Middleport in said town. The service of this notice was personal upon Sayres. At the time and place mentioned in said notice Commissioners Snell and Mackey met as a board of excise of the town of Royalton, and organized by electing Mackey temporary chairman. Sayres did not appear; but the board adopted a resolution appointing the petitioner, John J. Ryan, as attorney for the board of excise. Afterwards Mackey and Snell applied to the petitioner, informing him of such appointment as such attorney, which employment he accepted, and the commissioners then submitted to the attorney the proceedings that had been taken to remove them from office. He examined the law, advised them as to their duties, prepared an answer to the petition upon which the order to show cause was granted, appeared before the county judge, and acted as attorney for the commissioners before the county judge. All the commissioners appearing upon the return of the order to show cause, and upon a full hearing, the parties asking the removal of the commissioners being represented by counsel, and the commissioners being represented by the petitioner, Eyan, the county judge upon consideration dismissed the proceedings, and refused to remove the commissioners, or any of them. Sayre was present at the hearing before the county judge, but did not sign the answer made by the petitioner for the other-two commissioners. The petitioner afterwards prepared an account against the town of Eoyalton making a claim of fifty dollars. The period of his service covering about six days; which account he verified and presented to the town board of audit of the said town of Eoyalton at a regular meeting of the board held in the town for the purpose of auditing accounts against the town in the fall of 1892, and in October the board decided to and did reject and disallow the claim of the commissioner in toto as not a proper town charge for the reason, as it substantially appears from the papers, that the attorney for the board only rendered service for the commissioners individually upon a charge of misconduct for their removal, and his employment was not necessary or proper for the board of excise in discharging any of their duties under the statute.

The board of town audit seemed only to consider the question as to whether the bill was a proper town charge and did not go into the merits of the claim and there does not seem to be from the papers any dispute as to the facts. The meeting of the board at which Eyan was appointed attorney was a special meeting called after proceedings to remove the commissioners were instituted. The last regular meeting of the board of excise was held on the first of July and a motion was made and carried that, that meeting was adjourned until the first Monday of May, 1898; but the majority of the board have the right to call a special meeting at any time when the exigency of ■ the case demands it.'

Section 11 of chap. 401 aforesaid provides: “ a board of excise of a town may employ an attorney and counselor of the supreme court to act as attorney of such board from time to time as may be reasonably necessary. His compensation shall be a town charge and shall be audited and paid in the same manner as other town charges.”

The command of this statute is imperative. If the board of excise do employ an attorney and he does act from to time as may be reasonably necessary, his compensation shall be a town charge and shall be audited and paid. It must be conceded that Mr. Eyan was employed as an attorney by the board of excise; that he performed services at their request. Were the services which he performed reasonably necessary for the board ? A new and most comprehensive and important statute which assumed to revise and consolidate the laws regulating the sale of intoxicating liquors had just gone into operation. The duties of the board of excise and the consequences of a violation of those duties were prescribed by this statute. Important legal questions must be ■considered and acted upon by the board under it. It was plainly contemplated by the statute that the board would need an attorney to guide them in the discharge of their duties; they had entered upon the performance of those duties and in consequence of their action or non action they were assailed and charged with misconduct and wrong doing as a board and as commissioners and it was sought to remove them from office, not for anything they had done as individuals but because of their official action. It would seem that if any case could be presented where the services of an attorney were “ reasonably necessary,” it was this very case. It clearly was so.

The remaining question is whether the petitioner is entitled to a writ of mandamus compelling the auditing board of the town of Eoyalton to audit his account; that board has refused to consider his account upon its merits, and taken the position that no part of it was a proper town charge, and therefore rejected it altogether. In other words they have not acted upon the claim, but refused to act. Where this state of facts arises, and the petitioner has a clear legal right to have his claim audited as whereas, in this case the statute commands it to be done, mandamus may issue to set the board in motion and compel it to perform its statutory or legal duties. People v. Supervisors, 51 N.Y, 401, 407 and408; People ex rel. Hall v. Board of Supervisors of New York, 32 N. Y., 473 ; Hull v. Supervisors of county of Oneida, 19 John. 259 ; People ex rel. Lawrence v. Supervisors of Westchester County, 73 N. Y., 173 ; People ex rel. Johnson v. Board of Supervisors of Delaware County, 45 id., 196 ; People ex rel. Thurston v. Board of Town Auditors of Elmira, 82 id., 80; People ex rel. Sage v. Schuyler, 79 id., 189; Fiero on Special Proceedings, pages 48 and 52. People ex rel. Kellner, v. Mayor, etc., of New York, 23 N. Y. Supp., 1060; People ex rel. Fraser, v. Board of Auditors of Town of Hampton, 24 id., 974; 54 St. Rep., 403.

The counsel for the auditing board seems to rely greatly upon the People ex rel Myers v. Town Auditors of Highlands, 114 N. Y., 317; 22 St. Rep., 164. The facts in that case are so different from the one before us as to give us but little aid here. Two opinions were pronounced by the court of appeals in that case. Upon the first argument the opinion of the court is pronounced by Potter, J., and upon a motion for reargument an opinion was handed down uper curiam,” which after again revising the case to some extent and referring to the mixed questions of law and fact, in that case the court conclude at page 331, “ if the record before us showed that the claims sought to be recovered were made by a statute or by some well settled rule of law legal charges against the town, charges which the board was bound to allow in whole or in part, then this case would have been within the rule laid down in People ex rel Johnson v. Board of Supervisors, etc., 45 N. Y.. 196; People ex rel Thurston v. Board of Town Auditors, 82 id., 80 (cited above), and kindred cases. But as we have attempted to show the relator had failed to establish by the evidence contained in the record the absolute liability of the town, for the whole or part of any one of the claims.”

So that whatever may have been the inferences from the opinion of Judge Potter in conflict with the position here assumed, the court in its conclusions swings around the sound proposition, that if the town was liable for this claim or any part of it and refused to allow the claim for the reason that it was not liable, then mandamus would issue to compel the auditing board to consider and audit the claim.

It follows that the motion for a peremptory mandamus should be granted, and let an order be entered accordingly.

But as the auditing board seem to have acted in good faith and under the advice of counsel, no costs are imposed upon the granting of this motion.  