
    The People op the State op New York ex rel. John Dunphy and Others, as Commissioners in the Matter of the Petition of Henry Bullis for the Draining of Lands in Canton, New York, Respondent, v. Abram H. Wiggins, as Supervisor of the Town of Canton, New York, Appellant.
    Third Department,
    March 8, 1911.
    Water and watercourses — Drainage Law—bond issue — commissions and expenses of commissioners.
    The Drainage Law (Laws of 1869, chap. 888, as amended and re-enacted in Con-sol. Laws, chap. 15) is constitutional.
    Sections 15 and 16 of said statute, authorizing the supervisor of a town to issue bonds for the payment of money borrowed by drainage commissioners for the construction of ditches, or for land damages, do not authorize the commissioners to include in their account items for their compensation and personal expenses. The statute expressly provides for the compensation of the commissioners and for payment of their personal expenses at the termination of the proceeding.
    In any event, the court will not compel the issuance of bonds covering the commissions and personal expenses of drainage commissioners until their accounts have been audited and allowed under section 37 o‘f the Drainage Law.
    Appeal by the defendant, Abram H. Wiggins, as supervisor, etc., from a final order of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 2d day of September, 1910, granting a peremptory writ of mandamus compelling the supervisor to issue town bonds of the town of Canton under section 16 of the Drainage Law (Consol. Laws, chap. 15 ; Laws of 1909, chap. 20), which revised section 8 of the former Drainage Law (Laws of 1869, chap. 888 [R. S. pt. 3, chap. 8, tit. 16], as amd. by Laws of 1904, chap. 75).
    
      Vasco P. Abbott, for the appellant.
    „John R. Keeler, Frcmh K. Clea/oéUmd and Thomas Spratt, for the respondent.
   Smith, P. J.:

These proceedings were started in October, 1906. The law as it then existed as far as the same afiects this proceeding is the same as the Drainage Law appearing in chapter 15 of the Consolidated Laws as chapter 20 of the Laws of 1909. For convenience, therefore, in this discussion reference will be made to the sections of the General Drainage Law of 1909.

That this Drainage Law is constitutional was held in Matter of Myers (72 N. Y. 1) and Matter of Tuthill (163 id. 133, 141,142). By section 15 of this law it is provided that where it shall be necessary to raise funds for construction of said ditches or channels, or land damages” before the assessment thereinafter provided for can be made and collected, the commissioners were empowered, with the approval of the court, to borrow money and to issue evidences of indebtedness therefor; and the said commissioners were required to certify the amount to be borrowed to the supervisor of the town in which the lands to be assessed were located. By section 16 it is then provided that the siqoervisor of sucli town shall issue the bonds of the town to the amount named in the statement and shall sell the same and deliver the proceeds to the treasurer of such commission. These commissioners had borrowed money upon their notes, with the approval of the court given under section 15, and upon the refusal of the supervisor of the town to issue bonds therefor have procured the order of the court for a writ of mandamus for their issuance. From this order this appeal is taken. The order should be reversed for two reasons:

First. At the time that the commissioners sought the approval of the court for the execution of the last note included in the $4,000 of their evidences of indebtedness, they presented to the County Court an account showing the items of the amount for which they asked to issue certificates of indebtedness. In this account it appears are included items for the compensation and personal expenses of these commissioners. In my judgment it was not intended that temporary evidences of indebtedness under section 15 of the statute should be issued for such a purpose. It is elsewhere in the statute (§17 et seq.) provided that land damages must be paid before the land is taken and the cost of construction must necessarily be advanced by some one. Those items of disbursements, therefore, were provided for by providing for temporary advancements. It would be a very liberal interpretation of the words of the statute to include the compensation of the commissioners and their personal expenses in the words of section 15, “ funds for construction of said ditches or channels, or land damages.” There is specific provision in the statute for the recovery of this compensation and these personal expenses at the termination of the proceeding where it is provided explicitly for their audit and payment. Because, therefore, these items are included in the amount for which bonds are sought to be issued, the supervisor properly refused the request of the commissioners to issue the same.

Second. By section 37 of the Drainage Law it is provided that the commissioners as soon as practicable “ or whenever thereto ordered by the court ” shall make and file a detailed statement of moneys received by them and moneys disbursed. It is further provided that upon notice given to all parties, as provided in section 10 of the statute, this account may be audited. When those bonds are once issued they must be paid by the town. If upon the final audit certain of these disbursements should be disallowed, the only mode of reimbursement to the town would be a suit by the town to recover back from these commissioners to that extent the moneys paid to them from the sale of these bonds. The property benefited cannot legally be assessed for gucli expenditures. If the commissioners should happen to be insolvent the loss must fall upon the town itself, which has not in any way been made a party to the proceeding or lawfully charged with any of the cost of the improvement. Under such conditions, even if legally authorized, the discretionary power of mandamus should not be exercised to compel the issuance of any bonds except in payment of expenses which have been legally audited and found proper under section 37 of the act. The final order should, therefore, be reversed as matter of law and of discretion, with costs, and motion for writ of mandamus denied, without costs.

All concurred ; Kellogg, J., not sitting.

Final order reversed as matter of law and as matter of discretion, with costs, and motion for writ of mandamus denied, without costs.  