
    The People ex rel. John D. Tripp et al., Relators, v. The Board of Supervisors of Cayuga County, Defendants.
    (Supreme Court, Monroe Special Term,
    February, 1898.)
    1. District attorney — Expenses for experts on a trial for murder — County charge.
    Expenses, necessarily incurred by a district attorney under agreements made by him with medical witnesses sworn upon the trial for murder of. a person belonging to an influential family, are a proper county charge under .the County Law (Laws of 1892, chap.. 686, § 230, subd. 2).
    
      2. Audit by supervisors — Demand — Mandamus.
    Where the bills- of such claimants are, after presentation to the board of supervisors, .withdrawn from their consideration, the board has no power thereafter arbitrarily to audit the bills at amounts less than their face; but where- the claimants, after their withdrawal of the bills, have made no subsequent demand for their audit, they are not entitled to a peremptory writ of mandamus requiring the board to convene and make the audit.
    Application for a peremptory writ of mandamus requiring the board of supervisors of Cayuga county to assemble and audit the relators’ bills for services as eápert witnesses for the People on a trial for murder.
    John D. Teller and James Lyon, for relators.
    S. Edwin Day and H. Greenfield, for defendants.
   Davy, J.

This' -is an application for a peremptory writ of mandamus requiring the' board of supervisors of Cayuga county to assemble and audit the relators’ bills -for services as expert witnesses for the People on the trial of Frank FT. Sheldon for the. murder of his wife.

It appears, from the affidavits read on this motion, that the district attorney entered into a contract with the relators, eight-in number, agreeing to pay them each fifty dollars for each day’s attendance at court during said trial, and fifty dollars for each day in FTew York, mailing experiments at Bellevue Hospital, and also a reasonable compensation for other- services in connection with said case and all disbursements. The aggregate amount of the relators’ bills was five .thousand eight hundred and six dollars ($5,806). The board refused to allow the claimants fifty dollars a day for each day’s service on the ground that the amount was unreasonable and exorbitant, and only allowed them twenty-five dollars per day.

The principal question raised upon this motion is whether the district attorney, in his official capacity, had power, under the statute, to employ expert witnesses in the Sheldon trial, and whether the expenses incurred therefor are a county charge.

The statute provides that “ all expenses necessarily incurred by the district attorney in criminal actions or proceedings arising in his county shall be a county charge.” The statute also provides that “ the moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation is provided by law shall be a county charge.” 1 R. S. (Birdseye’s 2d ed.), page 784. The duty and responsibility rests upon the district attorney to prosecute those who have been indicted by the grand jury for crimes committed .and triable in his county. He was, therefore, charged with the duty of prosecuting Sheldon who had been indicted for the crime of murder in the first degree in killing his wife by shooting her at their home in the town of Brutus.

The district attorney states, in his affidavit, that sometime prior to the commencement of the trial, he learned that the theory of the defense was that she came to her death by her own act while suffering from mental .derangement, and that a large number of expert witnesses would be called by the defendant, on the trial, to establish her insanity. That, upon learning these facts, he considered it necessary to secure the assistance of medical experts to consult and advise with in the preparation of the case and to attend and testify upon the trial. That he interviewed each of the claimants with a view of obtaining their services, and he was informed by each of them that they would not consent to be witnesses upon the trial unless they were each paid fifty dollars a day for each day’s attendance at court, and for each day in making experiments at Bellevue Hospital, and also a reasonable compensation for other services that they might be required to render in the case. That he took the matter of such contract under consideration and .consulted with Mr. Frank D. Wright, who was associated with him as counsel in the case, and also with some of the judges of the courts and several members of the bar, as to the propriety of making such a contract. That after such consultation he concluded to make the proposed agreement. It was the duty of the district' attorney, acting in the line of his duty as a public prosecutor, to .secure the assistance of skilled expert witnesses, of high standing in the community, to, meet the professipnal experts which the prisoner intended to call on his side.

The accused was charged with having perpetrated a horrible crime, which caused intense feeling and excitement in the com-. munity. The question whether the deceased came to her death by her own act, while suffering from mental derangement, was one in respect to which the opinion of medical men would be likely to exert a weighty if not controlling influence with the jury. It' is evident that, if the district attorney had not taken the necessary steps to secure the attendance .of competent experts of high standing as witnesses, he might have been censured .as having been derelict in his duty to the people of the county as a prosecuting officer.' In a case of such magnitude and interest as this it would be expected that the district attorney would procure the highest professional skill that he could command. It is a well-known fact that expert witnesses are usually paid extra compensation for their services, when called in important cases, especially in homicide cases, and the question as to what amount they shall receive is usually regulated by contract. They cannot be required or compelled, if subpoenaed, to examine the case, and give an opinion on a question of science. It is customary and frequently necessary for expert witnesses to attend during the whole trial and hear and carefully consider all the testimony given on both sides in order to fully qualify them to give a deliberate and intelligent opinion.

The district attorney also states in his affidavit that Sheldon is a member of a very large and influential family; that his brother at the time of the homicide represented one of the assembly districts of Oayuga county.in the legislature, and that .great influence was brought to bear on the part of his relatives and friends to secure his acquittal. It is plain to be seen, therefore, that there was resting upon the district attorney a great weight of responsibility. Every circumstance connected with the prosecution was watched by the keen eyes of the people. He knew that, if the accused was acquitted through any mistake on his. part in the management of the base, he would be severely censured by the public. I am in-dined to think that, if ever there was a case which required the-district attorney to be vigilant in. the discharge of the great duty imposed upon him, this was one. The statute clearly invested him with a discretion to decide as to the necessity of employing, expert witnesses and the number required. The hmitation is confined to necessary expenses. Counties and municipalities, like natural persons, are bound by the acts and contracts of their agents done and made within the scope of their authority. Angel & Ames on Corps. 288-301; Alexander v. Cauldwell, 83 N. Y. 485.

It seems to me, judging from all the facts in this case, that it was not only necessary, but it was the duty of the district attorney to employ competent expert witnesses, and, if necessary, to enter into an agreement to pay them a specified sum for their services. The services were performed on the faith of the official obligation of the district attorney to pay them fifty dollars a day during the trial.

The rule is, that in the absence of fraud or collusion, the acts of a public officer acting on behalf of a county within the limits of the authority conferred upon him by statute, and in the performance of his duty in dealing with third persons, are the acts of the-county and cannot be repudiated by it. FTo different rule prevails in respect to this class of contracts than those made between private individuals. Baird v. Mayor, 96 N. Y. 592; Kingsley v. City of Brooklyn, 78 id. 215. It was his duty to do- that which a faithful and vigilant district attorney would be expected to do-, considering the magnitude and' importance of the case-, and that which was essential and necessary to the faithful performance of his official duty. Whether the expenses were unnecessarily incurred by the district attorney in the prosecution of Sheldon and' the number of days that the experts were employed, are questions ■that the board of supervisors may inquire into, but they have no-right to refuse to audit the claims unless they were unnecessarily incurred. The expenditures are to be deemed necessary within ¡the-plain meaning and intent of the statute, having in view what is due to the public at the time the contract was made and the efficient and faithful discharge of public duty.

The district attorney is the agent of the county, so far as his authority by statute extends, in the expenditure of money in the trial of criminal cases. Where, from the- necessity of the case, the law is obliged to trust to the sound judgment and discretion of ;an officer as to the propriety, legality or practicability of the performance of an act, and its manner of execution, the duty is of a .judicial character, and the officer is only required to act faithfully -as things shall appear to him, to the best of his ability. The liability of the county rests upon the ground that the expenses and disbursements were legitimately and necessarily incurred, and that the contract was made in good faith. Under such circumstances,' it-will not constitute a valid objection to the claims that the expenses or disbursements were not as reasonable as they ought to have.been. If the district attorney acted in good faith and according to the usual and ordinary course in prosecuting parties for the crime of murder where the plea ,of insanity was interposed, the county must be held liable for the amount of these services, based upon the amount agreed upon by contract.

In Flagg v. Inhabitants of Millbury, 4 Cush. 242, Wilde, J.,- in speaking for the court, says: “ By the word ‘ necessity ’ in the •exception we are not to understand a physical and absolute necessity, but a moral fitness ¡or propriety of' the work and the labor done, under the circumstances of any particular case, may well be' deemed necessity within the statute.” Morris v. State, 31 Ind. 190.

• Oases may arise of such magnitude and importance as to justify the district attorney in incurring, expenses beyond what are ordinarily incurred in the trial of ordinary cases. That occurred in the case of People v. Montgomery, 13 Abb. (N. S.) 207, who was indicted for killing his wife. The plea of insanity, was interposed in that case, and nearly all the prominent professional experts in western Hew York were retained by the defendant. The district attorney of Monroe county, after consulting Mr. Justice Dwight and -the justices .of the Court of Sessions and others, entered into an-agreement with Dr. Hammond, of Hew York, to come to Bochester and attend the trial as an expert witness for the People, which occupied his time for about two whole days, for which the county paid him the sum of $500. Upon a = motion for a new trial, the- court held that it was proper for the district attorney to procure the attendance of skilled witnesses, in appropriate cases,, for a special compensation at the expense of-the. county.

It. was held in People ex rel. Bliss v. Supervisors of Cortland County, 39 N. Y. St. Repr. 313, that “ The district attorney has power to hire a physician- to attend a trial as consulting expert and as a witness, and to make a contract for a specific compensation .to b.e paid for such service, and where a board of supervisors refuse-to properly audit such claim they may be compelled by mandamus: to do so.”

In People ex rel. Kelly v. Hawes, 12 Abb. Pr. 199, the court said:: The district attorney is a county officer, and in the performance-of his general duties acts as a county officer, and that the Kevised Statutes provide that the moneys necessarily expended by any county officer, in executing the. duties, of his office, and the contingent expense necessarily incurred for the benefit of a - county,, shall be deemed county charges.”

In People ex rel. Johnson v. Supervisors of Delaware County, 45 N. Y. 199, the relator was, during the years 1859-1868, attorney for the board of excise of the- county of Delaware. He-presented to the board of supervisors of that county his bill for-legal services rendered as attorney to the excise board, including-services in two suits. The supervisors offered him $300 if he would; release the county from all claims for costs and disbursements in. the suits conducted by him. ' This proposition the relator declined and applied for a peremptory mandamus. On service of the mandamus the supervisors disallowed all charges for disbursements and services made and rendered in subpoenaing and procuring attendance of witnesses other than statutory fees, and also other claims. Folger, J., in writing the opinion of the court, says: “ We have no doubt but that the board of commissioners of excise had the power to employ an attorney and counselor-at-law, to conduct for them their legal business, and to give them advice, from time to time, as they should need it. The act by which they are created imposes upon them the duty, when cases arise, of commencing and prosecuting legal proceedings. And as the board are the-agents of their county in the matters confided to them, when acting-for it therein, their contracts, express or implied, within the scope of their authority, for legal services, are binding upon the county.”

The case of Neary v. Robinson, 98 N. Y. 81, was an action brought in a Justice’s Court against the superintendent of the poor of St. Lawrence county, to recover for services rendered upon their-employment by the plaintiff’s attorney in bastardy proceedings, instituted by:-them. ■ Judge Finch,' in speaking for the court, said: The superintendents may properly employ professional assistance in conducting the proceedings. They become responsible as employers upon a contract which they are authorized to make, and whatever expense they thus incur, is made a county charge and. .subject to the audit of the board of supervisors. The statute determines what are to be deemed county- charges, and among them is .specified, the moneys necessarily expended by any county officer-in performing the duties of his office in cases in which no specific ■compensation for such services' is' provided by law.’ ”

In People ex rel. Hall v. Board of Supervisors of New York, 32 N. Y. 473, the case arose upon an application for a mandamus' ■to' compel the board of supervisors to audit the account of the relator for sheriff’s fees amounting to $18,210.61, paid by the district .attorney of the city and county of Hew York, in suits for penalties which he was. required to prosecute under the Metropolitan Police Act. The court says: “ The import of the words ‘ necessarily expended ’ is sufficiently evident, when we. consider the purpose for which they were inserted, and the nature of the subject to which they are applied. They,relate not to the necessity of ■ payment as between the officer and the party to whom it is made, * *.- * but to' the necessity of the expenditures, having reference to- what is due to the public and the law, in the efficient and faithful discharge of official duty.”'

Judge Bradley, in expressing the unanimous opinion of the •court, in People ex rel. Gardenier v. Supervisors, 134 N. Y. 8, , says: “ The power well recognized of district attorneys is to incur the expense of special compensation necessary to employ the services of experts to prepare themselves by investigation, in cases re■quiring it, to testify as witnesses upon the trials of persons charged with crimes.” In speaking of the power of the district1 attorney to .incur expenses, the learned judge says: “ Although the power of such officer may be abused in so far that expenses may be immoderately and perhaps unreasonably incurred, that would be imputable to his want of sound judgment or a failure to properly ■exercise it in the particular case, and whether or not they are unnecessarily incurred in the exercise of his power would be a mat-' ter for inquiry by the body called upon to allow them and provide for their payment. That the expenses, necessarily incurred hy the district attorney in the performance of his duty, embrace whatever is essential to bring a criminal to trial as well as the proceedings on trial, and if the accused is in a foreign jurisdiction, it includes- expenses incurred -in procuring his arrest and custody for the purpose of -extradition in order that he may be brought within the jurisdiction' of the- court.” Tompkins v. Mayor, 14 App. Div. 536; Kingsley v. Supervisors of Cortland County, 58 Barb. 139.

The affidavits show that the relators presented their bills to the board of supervisors at its last annual session, which were referred to the proper committees; that counsel for the respective claimants appéared before the board and urged that the claims be referred to a special committee, which request was refused. It was then determined that the matter should be heard in open board, and Saturday, December 11, was the day set for the hearing on said claims. Owing to the engagements of counsel for the claimants, the hearing was from' time to time postponed until the 17th of December, when one of the counsel for the claimants appeared before the board and asked for a further adjournment, which the board refused to grant. Thereupon said counsel asked leave to withdraw the claims from the consideration of the board, which leave was unanimously granted by the board. That there-after, and on December 18th, the reports of the committees having charge of said bills were adopted by the board, and the claims were audited, but at a reduction of one-half.

The affidavits also show that the claims were referred to a committee, but it does not appear that the committee or the board of supervisors summoned the district attorney or the relators or any' other witnesses before them for an examination and inquiry as to the necessity and validity-of the relators’ accounts, which, under the statute, they had a right to do. The statute permits the board of supervisors to summon and examine witnesses and to summon any county officer in any matter within the jurisdiction of the board. 3 R. S. (Birdseye’s ed.), page 2861. They did not report that any of the statements contained in the affidavits of the claimants were false; neither did they question the right of the district attorney to employ the relators as expert witnesses; neither did they impute any bad faith on his part in making the contract. They simply reported that' they had examined the claims ' and that the. alleged contract was unreasonable, and the price stipulated therein was exorbitant, and the amount mentioned in said bills was unnecessary, except as allowed. The board, by auditing a portion of the relators’ bills, conceded the necessity of having expert witnesses on the trial, and such ratification gives to the act the same effect as if it were previously and duly authorized by the board. This rule applies to corporations as well as to individuals. Peterson v. Mayor, 17 N. Y. 449.

I am inclined to think that the board exceeded its authority when it audited the relators’ bills after they had been withdrawn from its consideration. Assuming, therefore, for the purposes' of this application, that the accounts were illegally audited, the difficulty is that the relators are not in a position to entitle them to a peremptory writ of mandamus, for the reason that no request has been made to the board to audit the accounts since they were withdrawn. The rule is that a writ will not be granted to' compel the board of supervisors or any other corporate body to do an act which it has never been asked to do. The petition should show a demand for performance of the act, and, a refusal by the board. People ex rel. Thatcher v. Village of Hyde Park 117 Ill. 462; People v. Whitmore, 4 Mich. 27; 14 Eng. & Am. Enc. of Law, 167. It would be idle, therefore, to issue a peremptory writ commanding the board to assemble and act upon the relators’ accounts, when they are not before it for consideration.

The motion, therefore, for a peremptory writ of mandamus must be denied, with $10 costs to the defendants.

Motion denied, with $10 .costs to defendants.  