
    The People ex rel. W. Crawford Ramsdale v. The Board of Supervisors of Orleans County.
    (Supreme Court, Erie Special Term,
    February, 1896.)
    1. Supervisors — Audit of accounts.
    An examination of the various items of an account, and the dis-allowance of a single item, is an audit of the account.
    8. Same — Mandamus.
    Where the proof as to the rendition of the services charged for in a claim for services performed in a criminal case is not conclusive, but is such as to require the supervisors to examine the proof and determine the fact, they act judicially, and their action cannot be reviewed by mandamus.
    Motion for writ of mandamus.
    Albert 0. Burrows, for relator.
    James Swart, for defendant.
   Woodward, J.

The relator was, during the year 1895, a justice of the peace of the county of Orleans. In March of that year there was laid before him as such justice of the peace an information charging the accused person with the crime of arson in the third degree, committed in one of the towns in said county. This information the relator entertained and issued a warrant thereupon for the apprehension of the accused, who was arrested and brought before the relator; an examination took place, which resulted in holding the accused for trial, and he was committed on the warrant of the relator. -In October, 1895, at the annual meeting of the board of supervisors the relator presented an itemized account for services and fees in the said- proceedings, amounting in the aggregate to the sum of $15.05.

One of the items was in these words and figures: 20 certificates, @ 25c., $5.00.”

The board referred the account to a committee, who in a report to the board recommended that the sum be audited and allowed at, $10.05, and that an order be drawn in favor of the relator for that 1 sum. This report was adopted by the board, and the order was drawn and tendered to the relator for that sum, which he refused to accept. The relator now moves for a writ of peremptory mandamus, to issue against the board of supervisors, directing them to forthwith convene and-audit the said bill and to levy and collect a tax upon the taxable property of. the county of Orleans for its payment. The board of supervisors'appear and resist the application upon the ground, among others, that the -board did examine, pass upon and audit each and every item of the relator’s account, including the item of “ 20 certificates,” by disallowing the same, and allowing all the other items, which amounted to the aggregate sum of $10.05.

It very satisfactorily appears, by the affidavits presented to the court, that the board, acting through and by its committee, did separately consider and examine each and every item of the bill, including the one-entered as “for 20 certificates,” and that that item was disallowed.

This action constitutes an audit of the whole account. . An audit in its broad sense is to hear, examine and determine a claim by its allowance or its disallowance or rejection in toto or in part. People ex rel. Myers v. Barnes, 114 N. Y. 317.

.The relator contends that the item “20 certificates” should have been allowed in tóto, and that the board committed an error in rejecting the same, and the error can be corrected by the order of this court directing the board to audit the rejected item for the amount claimed.

The board contends that by the record presented to it by the relator it had a question of fact to determine from the evidence, and having used its judgment in the matter, it acted judicially in rejecting the item, and the court cannot compel it to re-examine the item and allow it for the whole amount claimed.

Whether the board committed an error or not involved a mixed question of fact and law. The fee for making a necessary and proper certificate is fixed by statute, and when the number of necessary certificates is determined, the board has no discretion whatever as to the fee to be allowed for such service.

The relator stands upon the single.point that he made “20 certificates; ” and that fact is indisputably maintained, he claims, by the papers he presented to the board, which are now before the court to be carefully examined.

The conclusion is reached that the case, as presented to the board of supervisors, involved an examination of the record-to determine if “20 certificates,” for each of which the relator could charge the fee fixed by law, were-made. The evidence is not conclusive on that question, and disposing of the item involved a judicial determination.

If the making of the certificates and the fact that they were necessary were clearly established by the proofs, or if the board admitted that the service was performed, and disallowed the item because, in their opinion, the service was not a legal charge, then the error can be corrected by the allowance of the writ demanded by the relator. People ex rel. Johnson v. Board of Supervisors of Delaware County, 45 N. Y. 196; People ex rel. Otsego County Bank v. Board of Supervisors of Oneida County, 51 id. 401.

On looking at the .account as printed, it will be observed tha" there is an omission to state..the nature and character of the certifi cates for which the charge is made. The item is this and no more: “ 20 certificates, @ 25c, $5.00.” • Standing alone, it is not made to appear that each was proper and necessary. It does appear that eighteen witnesses were sworn and examined on the hearing and that the legal fee for the certificate of each deposition of such examination is twenty-five cents, when made. But the bill on its face does not state that any of the certificates were attached to such deposition. The Criminal Code, § 204, does require the depositions to be certified, but there must be proof that as a matter of fact the certificate was made before the fee given by the statute can be allowed.' It is not stated that the examination of the several witnesses was taken in writing in the form of depositions. The only statement is, “ the witnesses sworn on such examination were as follows,” giving the name of each, eighteen in all.

There is another item in the account as follows: “ Swearing 18 witnesses, 10c. each, $1.80,” which was allowed. I am unable to discover any evidence in this item aiding the board in deciding the question of fact involved as to whether the certificates were, in fact, made.

The affidavit of the relator, attached to the account as printed, fails, it seems to me, to state in a direct and positive manner that the certificates were made. The affidavit is as follows:. That all items in such account above set forth are correct, that the services charged therein have been in fact made or rendered or necessary to be made or rendered.” This form of verification indicates that some of the services charged in the account were yet to' be performed.

The use of the disjunctive word or ” in connection "with" the preceding words in the same sentence seems to leave it in doubt whether or not all the items charged, were for past services. Grammatically construed it is a statement that the relator has performed or will in the future perform the.services mentioned! ■The account was verified on the 25th day of November, 1895, andJ on the same day it was presented to and filed with the board of supervisors, and audited on the 2d of December following. , In the relator’s affidavit verified on the 2d day of January, l896,¡ on which this motion is founded, he does state that “ the depositions taken on the said proceedings were duly signed, cexti-i fied and filed as required by law.” This additional statement1 was not before the board and cannot be used for the purpose! of showing that eighteen of the certificates were attached to the¡ written depositions of the witnesses' sworn on the hearing.

The relator’s case must on this motion abide by the- record of service and the proof thereof which he presented to the board of! supervisors. • .

Upon the papers presented it seems very clear that the board! of supervisors audited all the. items in the. account, and did not ' reduce the amount of the relator’s bill by deducting therefrom an; arbitrary sum not paid, but by rejecting and disallowing an item thereof. , ■ . .

It is.not necessary to examine the other cases cited on the" hearing, ,as the motion is denied on the ground that the proof presented to the supervisors as to the performance of the service of makibg “ 20 certificates ”, was not sufficient to establish the fact beyond controversy. The board was called upon to examine the proofs and' determine judicially whether such service had been, in fact, rendered, and their determination of that question cannot be reviewed by mandamus.

If I am correct as to the character and force of the proofs, the other points discussed need no examination.

Motion denied, with costs  