
    Nathan H. Vincent v. The Board of Supervisors for Mecosta County
    
      Sheriff’s fees.
    
    1. Supervisors cannot be compelled, in the absence of statutory authority to allow a sheriff ten cents a mile for travel in bringing back goods seized on a search-warrant, where they have already made that allowance for going to the place of service.
    2. A sheriff is not entitled to payment for merely colorable attendance in court, when he can produce no certificate from the court showing, his attendance, and when he has in fact, been employed elsewhere. But he should be paid for any substantial performance of his duty
    3. A board of supervisors cannot be restrained in its method of business in the disposition of claims if the claimant has not been deprived, thereby of an opportunity to be heard.
    4. Where a board of supervisors has permitted the sheriff to draw periodically from the county treasurer the amount of his actual expenses, leaving the rest of his account for future audit, they may properly, upon the final audit, refuse to allow credit for such of the expenses as they find improper, and may deduct the treasurer’s payments to. that extent from what would otherwise be due.
    5. A board of supervisors cannot delegate the auditing of accounts to the county treasurer.
    Mandamus.
    Submitted Oct. 30.
    Denied Dec. 21.
    
      Michael Brown for relator.
    Supervisors cannot charge-back against the sheriff money already allowed by them to-be drawn by him: Supervisors v. Birdsall 4 Wend. 460; Onondaga Supervisors v. Briggs 2 Den. 41
    
      
      Frank Dumon for respondent.
    The decision of the board of supervisors is final upon compensation for services to or claims against the county: Const. art. x, § 10; Act 165 of 1877; the fees to be paid the sheriff for services not provided for by statute are determined by them: Act. 286 of 1881; public powers or trusts devolving by law upon a body like a board of supervisors, to be exercised by it in such manner as it shall judge best, cannot be avoided, or delegated to others: People v. St. Clair County Officers 15 Mich. 85; Thompson v. Schermerhorn 6 N. Y. 92; Gale v. Kalamazoo 23 Mich. 344; Cooley’s Const. Lim. 204; Ruggles v. Collier 43 Mo. 359; East St. Louis v. Wehrung 50 Ill. 28; State v. New Brunswick 1 Vroom 395; Meuser v. Risdon 36 Cal. 239; when it has exercised its discretion and passed upon the account, has allowed a part and disallowed a part, a court of review will not undertake to control that exercise of discretion by mandamus: Kuhn v. Auditors 10 Mich. 307; Macdonald v. Muskegon Supervisors 42 Mich. 546; Clark v. Ingham Supervisors 38 Mich. 658; Abels v. Ingham Supervisors 42 Mich. 526; Stamp v. Cass County 47 Mich. 331; Peck v. Kent County 47 Mich. 477; the board should not allow illegal accounts: Kennedy v. Gies 25 Mich. 83; Mixer v. Manistee Supervisors 26 Mich. 423; and where it has passed upon the account and given the relator an opportunity of presenting and establishing his case, and the relator has in fact gone before ■ the board and been heard, its decision is final: Baldwin v. Board of Supervisors 12 How. Pr. 204; Wilson v. Supervisors of Albany 12 Johns. 414; Hull v. Supervisors of Oneida 19 Johns. 260; People v. Supervisors of Dutchess 9 Wend. 508; People v. Supervisors of New York 1 Hill 362; People v. Supervisors of Fulton 14 Barb. 52; Louisville v. Kean 18 B. Monroe 9; Commonwealth v. Henry 49 Penn. St. 530; Magee v. Supervisors 10 Cal. 376; Weeden v. Town Council 9 R. I. 128; Appling v. Bailey 44 Ala. 333; Exparte Crane 5 Pet. 190; Dixon v. Feild 10 Ark. 243; Exparte Newman 14 Wal. 152; McDiarmid v. Fitch 27 Ark. 106; State v. Warmoth 23 La. Ann. 76.
   Campbell, J.

Relator, as tinder-sheriff of Mecosta county y asks a mandamus to compel the allowance of part of an account rejected by respondents. It is not claimed that the whole bill was not considered, but the complaint is of the rejection of some items, and the deduction of some moneys previously paid to him from the amount otherwise due and recognized. It is also claimed that some charges and restatements were made after he had been heard, and without an opportunity for further hearing.

' This last suggestion is not in our view admissible. It appears that relator had an opportunity of being heard, and was heard upon his whole' claim. It does not appear that any testimony was afterwards submitted against him. We cannot, therefore, hold that he was deprived of the opportunity of showing any right which he had, and the supervisors cannot be restrained as to their methods of business' which shut out no such opportunity.

The excluded items called to our notice are a charge of ten cents per mile for bringing back certain goods on a search-warrant, (a similar amount having been allowed for service of the writ and travelling to the place of service, 93 miles,) and a further series of charges for a daily allowance of $2.50 for attending court.

As no statute has been palled to our attention by relator,, fixing charges for such services as were rendered in regard to removing the goods in question, we assume that our diligence will not find any. In the absence of a statute the board .cannot be compelled to make the allowance claimed.

In the case of the charges for attendance on the court the record does not show that any court certificate or other determination of the fact of relator’s attendance was produced. It further appears that the board looked into the facts and did not think the services had been rendered as claimed, or at any rate had been fully rendered. The relator’s petition contains no such averment. W e cannot hold the supervisors in fault without a distinct showing of something which they had no right to determine as they did. We cannot tell from this record that any particular charges have been improperly thrown out. They certainly had a right —as the record stands — to inquire into the facts.

But it is proper to refer to one consideration that apparently entered into the action of the board. They point out that in one case where a charge was made for attendance, relator was earning money for services of a different nature incompatible with such attendance. While it may be true that an officer will not be held to lose his per diem by not being for every moment of the day in court or doing business relating to the session, yet we do not think the statute was designed to pay sheriffs or deputies when their attendance is merely colorable, and when in fact they are occupied most of the time elsewhere. There has been much abuse practiced in making constructive charges, and we do not think supei’visors can be censured for scrutinizing such charges with some care. Every reasonable allowance should be made for services which have been substantially, though not literally, performed. But this is all that should be exacted. And when the court itself does not certify to the officer’s attendance in court, the facts must be open to inquiry.

The principal dispute arises out of a peculiar practice, by which the supervisors provided that the sheriff might draw periodically from the county treasurer the amount of his actual expenses, leaving the rest of his account for future audit. A considerable sum was so drawn, but tlie board, when the accounts were finally audited, refused to allow credit for some of these expenses and deducted the treasurer’s payments to that extent from what would otherwise have been coming to relator.

We think their course was proper. The board of supervisors have no right to delegate the auditing of accounts to the treasurer, and we do not suppose they meant to. They certainly ran some risk in allowing moneys to be drawn in advance of credit, but they probably understood that under the restrictions imposed there would be no ultimate overdraft. It was their duty before balancing the accounts, to see that relator received no more than was justly receivable. It is not now shown that the moneys charged back were for services or outlays which they could not question.

We think no case is made out for a mandamus, and it must be denied with costs.

The other Justices concurred.  