
    THE PEOPLE, ex rel. JOHNSON, against THE SUPERVISORS OF DELAWARE.
    
      [No. 1 of this name.]
    
    
      Supreme Court, Third Department, Sixth District; General Term,
    June, 1870.
    Attachment.—Board of Supervisors.—Appeal.— Mandamus.—Attorney of Excise Board.— Audit of Charges.—Interest.
    The remedy against the board of supervisors for disobedience oí a mandamus, is not by attachment against the board, but against the individual members guilty of contempt.
    On appeal from an order denying a motion for an attachment for contempt in disobeying a writ of mandamus, the court may direct a new peremptory writ to issue, in such form as to meet the exigencies of the case.
    The charges and disbursements for subpoenaing witnesses, by the attorney of a board of excise, if reasonable in amount, and necessary, in actions brought by him in the course of his official duty, are lawful charges against the county; and the supervisors may be compelled by mandamus to audit his account presenting them.
    So also his compensation for his services, in an action brought in good faith, although unsuccessful.
    The failure of the supervisors to allow anything for such charges is not a judicial act, which cannot be redressed by mandamus.
    In the absence of any custom known to all the parties, the attorney is not entitled to interest upon such charges, except from the time the demand has been formally adjusted.
    Appeal from an order. .
    The commissioners of excise of Delaware county, in May, 1859, employed the relator, Stephen C. Johnson, to receive complaints and prosecute violations of the excise law of 1857.
    
      It was agreed that he was to endeavor to obtain his compensation ont of recoveries in such prosecutions, but should there be a deficiency, the commissioners were to use their influence in having his charges allowed by the supervisors of the county.
    The relator brought action, in the name of the commissioners of excise, against one Sackrider, in which the plaintiffs’ recovery in a justice’s court was reversed on appeal.
    Another action, brought against one Coan, was terminated by the defendant’s death.
    The relator presented his claim for costs in these cases to the board of supervisors, who made an order offering to pay him a specified sum if he would file a release of his claim for costs, &c., as attorney of the excise commissioners. This he refused to do, and subsequently procured a writ of mandamus to issue, requiring the board of supervisors to vacate their first order, and examine and audit his account, and allow the sum of such items thereof as were legal charges against the county, distinguishing between such items as should be allowed and such as were partly allowed and partly or wholly disallowed, so as to allow their action upon such audit to be examined, and reviewed by items.
    The relator then made out a new bill of charges, and verified and presented it anew.
    The supervisors subsequently referred the accounts to a committee, who reported, allowing all the usual taxable charges in the Coan case, except charges of disbursements and services in subpoenaing and procuring attendance of witnesses, other than statute fees; and also rejecting the charges in the Sackrider case. This report the board adopted ; but there was nothing to show the reasons for a disallowance of the rejected claims.
    The defendants, however, subsequently interposed affidavits, stating, among other things, that the claims were rejected in part on the ground that the relator had received considerable sums from other actions.
    During the time which elapsed, a new board of supervisors was elected; and only seven members of the former board were re-elected to serve upon the new board.
    In April, 1869, the relators applied for an attachment against the board of supervisors, or for a reference to determine the amount due, or for such other relief as to the court should seem just. The motion was denied, the foHowing opinion being delivered:
    Boardman, J. This application for an attachment must be denied for several reasons :
    1. The proceedings should not have been against the board as a corporation, but against such officers of the board as were guilty of a contempt in refusing to obey any order of the court.
    2. lío case is made for an attachment. The account for the auditing of which a mandamus was issued was amended, increased, verified anew, and then in its new form presented for audit and allowance. The order of the court had no reference to such new account.
    8. The mandamus granted did not attempt to direct the board what to do. The board, before that, had done nothing, except to offer a specific sum by way of compromise. That being unsatisfactory to the relator, he had the right to require the board to proceed and audit his account in the ordinary way. That the court ordered the board to do. It has been done, and if them be any error in such audit, it must be determined and settled by the court upon a review of such audit before more specific directions can be given the board, or any attachment issue for disobedience of such specific directions. The mandamus already issued was simply to set the board in motion. It did not purport to control the action to be had. I am satisfied the audit of the Coan costs is fair and liberal to Mr. Johnson. Whether the Sackrider costs, or any portion of them, should be allowed, I am not prepared to say; unless there be some ground of opposition to it which I cannot see, it would seem that Mr. Johnson should be allowed a reasonable compensation for his services rendered in good faith in the Sackrider case. Though his authority was insufficient in law to sustain the action, it would seem to have been sufficient as between himself and the commissioners of excise. If, then, the commissioners of excise as a board are legally bound to him for his service, and if they have in no way provided for his payment, it would seem equitable that the county of Delaware should do what the commissioners of excise, from want of funds, are unable to do—audit and pay justly for services rendered. This is not, however, before me now, and 1 should not be considered as expressing any opinion to govern my action in future.
    The motion for an attachment or for a reference to determine the amount due is denied with ten dollars costs.
    From the order entered on this decision the relator appealed.
    
      S. C. Johnson, relator in person,
    Cited 30 How. Pr., 173, 180; 20 Barb., 294; 18 Johns., 242; 2 Crary Pr., 55, 85; 3 Keyes, 334; S. C., 3 Abb. Pr. N. S., 381; 2 Am. Com. L., 33; 5 Cow., 587, 331; 1 Johns., 315; 11 Wend., 477; 3 Abb. N. Y. Dig., §§ 1, 20, 54; 1 Hill, 154; 1 Crary Pr., 200; 2 Abb. Pr., 390; 7 How. Pr., 567; Voorhies’ Code, § 400, note d; 9 Paige, 372; 2 Sandf., 724; 4 How. Pr., 369; 10 Johns., 323.
    
      William Gleason, for the respondents,
    Cited 2 Crary Pr., 69; 2 Johns. Cas., 2 ed., 2, 17, note 69 and cases there cited; 26 Barb., 118 ; 2 Crary Pr., 58 ; 11 
      Wend., 91, 95; 19 Id., 56, 58; 18 Id., 79; 9 Id., 508; 14 Barb., 52, 446; 39 Id., 652; 33 Id., 603; 12 Johns., 414; 1 Hill, 362, 367; 5 Den., 565; 14 East, 395; 9 Pet., 602; 4 Barn. & Al., 300; 5 Binn., 103; 2 Bibb, 573.
   By the Court.—Miller, J.

This is not a case for an attachment against the board of supervisors for disobeying the order for a peremptory mandamus, as the remedy in such cases should be against those members of the board who were guilty of a contempt in refusing to obey the orders of the court.

It is evident, however, that the relator is entitled to some relief, and I am inclined to think that the board of supervisors have failed to comply with the terms of the order, substantially granting a peremptory mandamus. Such being the case, I think the relief required can properly be obtained, and should have been granted upon the motion, on the return of the order to show cause in this case; and that upon this appeal, such modification can properly be made of the order of the special term as will meet the exigencies of the case and ■ promote the ends of justice.

It is not denied that the relator is entitled to costs in the case of Board of Excise v. Coan. The board of supervisors have allowed all the items of taxable costs in the bill originally presented, and have disallowed the charges made for subpoenaing witnesses, and the disbursements necessarily made in connection therewith. As to these last mentioned items, they have refused to allow any sum whatever. There is nothing, however, in the papers, to show that there is any dispute that the per diem charges for subpoenaing the witnesses were reasonable, and had been incurred, nor that the disbursements had not actually been made. S o question is made that the charges for these services were too large; and as no lesser sum was allowed, and there is no dispute as to their being rendered, or their value, it must be assumed, I think, that they were fair and just. It is also clear that these disbursements were a proper charge for the attorney within the scope of his powers and duties, and especially within the spirit and meaning of the authority conferred upon him by the commissioners of excise in conducting the suit, the same as any other lawful disbursement in the progress of the case. These charges, as well as „the disbursements, were incurred under the directions of the proper officers, within their lawful sphere of action; and the services rendered and moneys expended were absolutely essential for the successful prosecution of the suit which had been instituted by them, and, under the circumstances, the attorney would have utterly failed in the suit and neglected his duty, had he omitted to see that needful steps were taken to secure -the attendance of witnesses upon the trial. The propriety and accuracy of the charges made, is, in fact, conceded, and no lawful excuse is given why they should not be allowed as rendered in the account. They were unquestionably a lawful charge against the county, the same as any other legitimate claim for services rendered, or moneys necessarily expended by a public officer in the discharge of the duties of his office (People v. Supervisors of New York, 32 N. Y., 473; People v. Supervisors of St. Lawrence, 30 How. Pr., 173; Bryce v. Supervisors of Cayuga County, 20 Barb., 294; Bright v. Supervisors of Chenango, 18 Johns., 242).

As to the costs in the Sackrider case, although entirely rejected, no special objection is made to any of the items charged, or to the amount, and it is not claimed that the services, for which remuneration was claimed, were not actually rendered.

The relator was lawfully retained in this case, and I am unable to discover any good ground for refusing to award him. a proper compensation, at least some amount for his services. He acted in good faith, by virtue of the authority of the excise commissioners; and it is no reason why he should not be paid for his services, that the action was unsuccessful. There is no evidence of any neglect of duty on his part, nor anything to interfere with the allowance of his claim for the services rendered and expenses actually laid out, which constitute no insignificant portion of the claim presented.

I think that the board of supervisors failed to comply with the requirements of the writ of mandamus, in entirely rejecting the charges made in the casé of Coan for services rendered and moneys expended, which it must be conceded, upon every just principle, were proper and lawful charges ; and also in rejecting entirely the claim made for costs and disbursements in the case against Sackrider. By allowing no sum for the rejected charges, the board have clearly failed to exercise their discretion, and neglected a plain duty. It is no answer to say that the relator had received sums of money for penalties and costs in other cases, so long as no payment had been made or applied upon, or was claimed as on offset against, the demands in controversy. He had a valid claim for those services and expenses, and the board of supervisors were bound to allow and audit some amount for those which were in their discretion, and the law had not fixed, which they have completely failed to do.

The failure to audit and allow any sum for the services rendered and the disbursements made, which are conceded, can not be considered as a judicial act, which precludes the relator from invoking the remedy of a mandamus. Such cases arise where the whole amount is rejected for want of proof, or because of the charges being illegal, or where some amount is audited; but the rule has no application where there is no dispute that the services have been rendered, or of the liability to pay, and the amount of the charges and items is not contested.

I am inclined to think that the relator is not entitled to the allowance of interest, as the demands have never been formally adjusted, and there is no proof to establish a custom to charge interest which was known to all the parties or generally understood.

I am of the opinion that the order of the special term was erroneous, denying the motion absolutely, and, as the order to show cause includes other relief, and all the facts are before us, that an order should be entered reversing the order of the special term and directing that a peremptory mandamus issue to the board of supervisors commanding them to allow the relator the bills rendered in the two cases referred to. The relator should also have ten dollars costs of motion and ten dollars costs of this appeal.

The order may be drawn and served upon the attorney for the respondents, who may serve amendments within five days thereafter, and the order may be settled upon not less than five days’ notice. 
      
       Present, Millee, Pabkbe and Potteb, JJ.
     