
    The People, ex rel. Downing, vs. A. V. Stout, treasurer, &c.
    The hoard of supervisors, in each county, have conferred upon them, by law, most important powers, and in reference to all county charges they have the authority to direct the levying, collecting and raising of the same; and it is their duty to exercise that authority.
    When a board of supervisors are required, by law, to audit and allow the accounts of a class of public officers, they have no discretion to exercise, but must allow the salary as fixed by law.
    So, after the compensation of the city inspector of the city of New York, for keeping a record of births, deaths and marriages, has been fixed by the board of supervisors, under the authority conferred upon them by the statute, it becomes as binding and conclusive on the board, in reference to the auditing and allowance thereof, as though it had been fixed by the legislature itself. And the board has no discretion on the subject, but must audit and allow the accounts of the inspector, on the basis of the compensation thus established.
    And it being the duty of the supervisors to direct the raising of such sums as may be necessary to defray and discharge all accounts chargeable against the county, and it having full and ample power to do so; and having, moreover, levied and collected the sum of $70,000 for county contingencies, under an act of the legislature, which prohibited the money from being expended or applied for any other purpose; Held, that a fund was thus provided for the payment Of the city inspector’s accounts, after they had been audited and allowed by the board of supervisors, and that a mandamus would lie to compel the treasurer of the city to pay such accounts.
    
      Held also, that it was no excuse for not paying such accounts, that the fund had been exhausted in paying claims against the corporation, or for city contingencies.
    MOTION for a peremptory mandamus to the defendant, as treasurer of the county of New York, directing him to pay to the relator the amount of an account which had been audited and allowed by the board of supervisors and ordered to be paid by the defendant as county treasurer. An alternative mandamus had previously been issued, to which the defendant made a return.
    
      J. W. Edmonds, for the relator.
    
      M. V. B. Wilcoxson, for the defendant.
   Davies, J.

In 1853 the legislature of this state enacted a law providing for the keeping a record by the city inspector of the city of New York, of each birth, marriage and death happening in said city and reported to him. (Laws of 1853, ch. 75.) By section 4 of this act it was provided that said city inspector should be entitled to receive for his services, under that act, such fees for recording each birth, marriage or death, as the board of supervisors of the city of New York might establish, the fees for recording of births being payable by the board of supervisors, and for marriages by the person reporting the same, and the fee for recording each birth or marriage was not to exceed ten cents. In pursuance of the authority conferred by this act, the board of supervisors of the county of New York, (that being the body evidently intended by the act,) on the 3d of August, 1853, proceeded to fix the fees of the city inspector for recording births and marriages under 'the act, and fixed the same at ton cents each. (See proceedings of the Board of Supervisors for 1853, pp. 183-6.) The relator was city inspector for the years 1853. 1854 and 1855, and during those years performed the duties enjoined upon him by virtue of this act. After the termination of his official term, and during the present year, he presented his account for such service to the board of supervisors of this county, who have audited and allowed the same, and directed the payment thereof by the defendant, the county treasurer of said county. His refusal is based on the ground that the only fund out of which the same can be paid is the sum of $70,000 authorized by the annual tax bill of 1856 to be raised for county contingencies, and that the whole of the said fund, except the sum of $450, had been paid out by him, upon what he alleged to be legal and proper warrants upon said fund, and that consequently he cannot pay the same. As evidence of such payments, and of the purposes and objects to which the same have been applied, the county treasurer has furnished the court with a statement of all drafts drawn upon that fund and paid by him, from which it appears that he has paid, from January 1,1856, to December 9, 1856, out of said fund -of $70,000, by warrants drawn upon it, the sum of $69,943.68, leaving a balance in his hands of the sum of $56.32, only.

The state of New York, for the purpose of government, is divided into counties, towns and cities. The boundaries of each are defined by the revised statutes, and the power, duties and liabilities of each are defined by the constitution and laws of the state, or the charters of the several cities. Part 1, ch. 2, tit. 1, of the revised statutes, contains the division of the state-into 60 counties, and defines the boundaries of each. Among the counties enumerated is the county of New York, and its boundaries are specified. Title 5th of the same part and chapter contains the division of the several counties of this state into towns, (except the county of New York,) and defines the boundaries of each town. Title 6th of the same part and chapter contains an enumeration of the several cities of this state, and their division into wards, and defines the boundaries of each city, and of the several wards into which the same is divided. Section first of this title declares that the city of New York contains all that part of this state comprehended .within the bounds of the county of He w York, and which is now divided into twenty-two wards.

We thus see that for the purpose of civil government, two separate and distinct organizations are established, embracing the same territory, and each possessing its appropriate functions. The county is organized for the purpose of state government, the city for the management of its private property and franchises, and with authority to make all needful laws, statutes, rules and regulations useful and necessary for the good rule and government of the corporation, and of all officers, citizens, inhabitants and residents of the said city, within the limits thereof. The powers conferred upon the city government are found in the several charters granted by the crown and confirmed by the people of this state, in their several conventions, and by various acts of the legislature which have been passed, amending these charters, with the assent of the corporation. The powers and duties of the board of supervisors are to be found in the revised statutes of this state, and of the several acts-of the legislature, conferring specific powers upon them. Chapter 12th of part 1st of the revised statutes treats of the powers, duties and privileges of counties and of certain county officers. Section first, article first, title first, declares that each county in the state, as a body corporate, has capacity to sue and be sued in the manner prescribed by law; to make such contracts, and to purchase and hold such personal property as may be necessary to the exercise of its corporate or administrative powers. Section 2d declares that no county shall possess or exercise any corporate powers, except such as are enumerated in that chapter, or shall be specially given by law, or shall be necessary to the exercise of the powers enumerated or given. By section 3d it is provided that all acts and proceedings by or against a county in its corporate capacity, shall be in the name of the supervisors of such county. By section 4th it is provided that the powers of a county, as a body politic, can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted. Title second of same chapter relates to the county officers, which are declared to be the board of supervisors, county treasurer, loan officers, and commissioner of loans, clerk of the county, sheriff, coroners and surrogate. Article 1st of said title treats of the board of supervisors, and declares their powers and duties. Among the most important and pertinent to this investigation are, to examine, settle and allow all accounts chargeable against such county, and to direct the raising of such sums as may be necessary to defray the same.” Section 2 of title 4, article 8 of same chapter directs that the money necessary to defray the county charges of each county shall be levied on the taxable property therein. “ And in order to enable their respective county treasurers to pay such contingent expenses as may become payable from time to time, the boards of supervisors of the several counties shall, annually, cause such sum to be raised in advance, in their respective counties, as they shall deem necessary for that purpose.” By reference to section 3 of title 4 of article 8 of the same chapter, it will be seen what are declared by law to be county charges. They are enumerated in the several subdivisions of this section, from 1 to 15 inclusive, and by sub. 16, 11 Every other sum directed by law to be raised for any county purpose under the direction of a board of supervisors.” It is, therefore, a clear deduction from these provisions of the statute, that the board of supervisors have conferred upon them by law most important powers, and that in reference to all sums justly and legally chargeable to the county, or in other words, for all county charges, they have the authority of law to direct the levying, collecting and raising of the same, and they not only have the authority of law, but it is their duty so to do.

As early as the year 1807, (Laws of 1807, ch. 48,) the legislature passed an act on this subject, which has ever since been in force, and the substance of it forms section 48 of article first of title 1 of chapter 12, part 1 of the revised statutes. The preamble to this act recites that whereas the supervisors of the several counties of this state have on some occasions neglected to raise such sums of money as by law they were required to raise, whereby great evils have and may result from such neglect and refusal, and for remedy whereof it was enacted that when the supervisors of any county had or should be directed by law to raise moneys for any purpose, and should refuse or neglect to raise the sum so required to be raised, every supervisor so neglecting or refusing should forfeit and pay the sum of §250. By the revised laws of 1813, chapter 49, section 10, this forfeiture is incurred if any supervisor shall neglect or refuse to perform any of the duties required or enjoined on him by law, and such is the provision of the revised statutes. By section 10 of title 4, of article 8, of chapter 12, part 1 of the revised statutes, it is declared that accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them. We have thus seen, that by law the city inspector was to receive for recording births such sum as should be fixed by the board of supervisors of this county, not exceeding ten cents for each birth, the sum to be paid by the board of supervisors. That the board of supervisors fixed said fee at ten cents for each birth. That every sum directed by law to be raised for any county purpose, under the direction of the board of supervisors, is a county charge. That all accounts for county charges shall be presented to the board of supervisors of the county to be audited by them. That it is the duty of the board of supervisors to examine, settle and allow all accounts chargeable against the county, and to direct the raising of such sums as may be necessary to defray the same.

This court, as early as the year 1810, held that an act of the legislature, similar to that of 1853, was mandatory upon the board of supervisors, and that they were bound to execute it without delay, and that the supervisors who refused to raise the money for the purpose required by law, were liable to the penalty of §250 for such neglect and refusal. (Caswell v. Allen, 7 John. 63.) Tates, J., in delivering the opinion of the court, says in reference to the act of 20th of March, 1807, and which has been in force in this state ever since, that “ this law was passed to prevent a growing evil. Many instances had occurred of supervisors, not only neglecting, but absolutely refusing to comply with acts of the legislature, by which they were directed to raise money for public purposes, and by such neglect impeded the progress of measures evidently beneficial to the community. Although required for public convenience, yet owing to local prejudices and disputes, these measures could not be .forwarded.” In that case, an act of the legislature of April, 1807, had directed the supervisors of the county of Cayuga to raise the sum of $800, to be applied toward the erection of a fire-proof clerk’s office in said county. Judge Yates further says, “ This act is mandatory. No "discretion appears to be given to the supervisors; they were obliged forthwith to raise and levy the tax as directed, and the supervisors, who, by- their votes, prevented a compliance with the statute, have rendered themselves liable for the penalty mentioned in the law of 20th March, 1807.”

The same principle has been decided by the court of errors in this state, in the case of Merrit v. The People, (3 Denio, 381.) This court held that when an act of the legislature declared certain salaries to be county charges, and directed the supervisors to audit and allow the same, every supervisor who neglected or refused to make such audit and allowance, subjected himself to the penalty of the statute. That when the board of 'supervisors of a county are required, by law, to audit and allow” the accounts of a class of public officers, they have no discretion to exercise, but must allow the salary as fixed by law. The compensation to the city inspector was fixed by the board of supervisors, under the authority of law, and when so fixed became as binding and conclusive on the board of supervisors, in reference to the auditing and allowance thereof, as though it had been fixed by the legislature itself.

The supervisors had therefore no discretion in reference to the matter, but to audit and allow the accounts of the relator, on the basis of the compensation thus established. In Supervisors of Onondaga Co. v. Briggs, (2 Denio, 26,) Judge Bronson held that the audit and allowance of accounts against the county by the board of supervisors, who had the authority to make such audit and allowance, is a determination conclusive upon both parties, especially upon themselves. Section 49 of article 1 of title 2, chapter 12, part 1 of the revised statutes, declares that the mayor, recorder and aldermen of the city and county of New York shall be the supervisors of the city and county of New York, and all the provisions of that article are made applicable to them, except where special provisions inconsistent therewith are or shall be made by law.

It is thus seen, I think, that the supervisors have discharged their whole duty, and nothing but their duty, in auditing and allowing this account. A further duty was imposed on them, and that was to direct the raising of such sums as might be necessary to defray or discharge all accounts, this as well as others, chargeable against the county. This they had full and am • pie power to do, by the revised statutes quoted above, without any further legislative action, and this the board of supervisors in any county of this state annually do, by virtue of the authority thus conferred. An application was however made to the legislature for authority to levy and collect by tax such sums as it supposed would be necessary for these purposes, and the legislature at its last session authorized the board of supervisors to levy and collect by tax the sum of $70,000 for “county contingencies,” and this sum has accordingly been levied and collected for this purpose. It was said on the argument that this sum has net been regarded as collected for county contingencies, or county charges, but has been used promiscuously for city contingencies, as well as county contingencies. It seems to me that its designation is clear, specific and unmistakable, and that it must be regarded as the plain declaration of the legislature that this sum was raised for the payment of county contingencies or county charges. The legislature well knew that there were county charges to be paid. They had so declared it on the statute book, and made it the duty of the supervisors to audit and allow them. And I sec no- other fund authorized to be raised by the annual tax-bill, which can at all be regarded as a fund for such a purpose. We must bear in mind that it is the only fund enumerated in the tax-bill which can be thus used, and that this law contains this important and significant declaration, that “ no portion of the said respective sums hereinbefore named shall be expended or applied to any other purpose or object than the said object and purposes respectively for which the board of supervisors of said city and county of New York are hereby empowered to raise the same as aforesaid.”

We thus see that county charges or county contingencies would accrue, and must be provided for, that the legislature authorized the raising of the sum of $70,000 for their discharge and payment, and declared that the moneys so authorized to be raised for the purpose, should in no event be expended or applied to any other purpose. We must adopt this conclusion or we are forced to the result that the legislature did not intend that this fund should be used for the purpose and object designated, but intended to leave the board of supervisors under the power conferred on them by the revised statutes to raise the necessary sums to .defray all county charges in addition. I cannot think that this was the intent of the framers of the annual tax-bill, or of the legislature which passed it, but the act is to be construed to mean just what it says, that this sum of $70,000 is to be expended and applied to county contingencies, and to no other purpose or object whatever. . .

The charters of the city of New York authorize the appointment of an officer to be called the chamberlain or treasurer thereof. Such an officer has existed since the earliest organization of the city government. He is to receive, keep and disburse the funds of the corporation, under such rules and regulations as the common council may from time to time prescribe. By section 70, of article 2, title 2 of chapter 12, part 1 of the revised statutes, the chamberlain of the city and county of New York shall be considered the county treasurer thereof, and all the provisions of that article are to be construed to apply to him, except when special provisions, inconsistent therewith, are or shall be made by law. The treasurer is the officer of the county, and the county is liable for his default and misconduct. (The People v. The County of New York, 5 Cowen, 336.) By section 55 of this title it is provided that it shall be the duty of the county treasurer to receive all moneys belonging to the county from whatever source they shall be derived, and to pay and apply such moneys in the manner required by law.

It does not need any argument to show that moneys raised for county contingencies belong to the county, and that the sums so raised are to be received by the county treasurer thereof, and paid and applied by him, in the manner required by law. That is, in reference to such moneys they can only be paid out to defray legal county charges, on accounts duly presented and verified according to law, and audited and allowed by the board of supervisors, and the reality of such audit attested by the signature of the chairman of the board, and the clerk thereof.

In reference to moneys to be drawn from him as chamberlain or treasurer of the corporation, section 13 of the amended charter of 1853 provides that all accounts against the city shall be audited by the auditor of accounts, and that all moneys drawn from the city treasury shall be upon vouchers for the expenditure thereof examined and allowed by the auditor and approved of by the comptroller. No moneys can therefore be paid legally, or drawn from the city treasury, except on vouchers for the expenditure thereof, first examined and allowed by the auditor and then approved by the comptroller.

We thus see with what care and caution the legislature have thrown every guard around both the city and county treasury, and, in reference to the former, have placed a most emphatic veto upon the payment of any sum by the chamberlain, unless he receives the approval of the head of the finance department. Stringent regulations have also been provided by law in reference to payments by the county treasurer. Section 58 of the title 2 above referred to, declares that at the annual meeting of the board of supervisors, or at such other time as they shall direct, the county treasurer shall exhibit to them, all his books * and accounts, and all vouchers relating.to the same, to be audited and allowed. Section 43 of the same title, makes it the duty of the board of supervisors annually to publish in one or more public newspaper in such county, the names of every individual who shall have had any account audited and allowed by said board, and the amount of said claim as allowed, together with the amount claimed. We have seen how stringent are the penalties imposed on supervisors for the neglect of any duty imposed on them by law, and how uniformly the courts have enforced them.- These provisions for strict accountability and annual publicity of the claims audited and allowed, cannot fail to secure that rigid accountability and faithful application of the moneys raised by taxation which those .who contribute it have the right on every principle to require.

We arrive now at our last inquiry, and that is, has the county . treasurer any funds or moneys which he can apply to the payment of this account, and will a mandamus lie to compel its payment? That a mandamus will lie to compel a county treasurer to pay an account legally chargeable to the county, audited and allowed by the board of supervisors, was held by McCoun, J., in Huff v. Knapp, (1 Seld. 65.) and by Strong, J., in The People v. Edmonds, (15 Barb. 529.) If he has not the funds to pay the account, or has it not in his power to provide them, then he could not pay it, and the issuing of the mandamus would be an idle ceremony. It could not be complied with, and in such cases ought not to issue. (The People v. Supervisors of Westchester County, 12 Barb. 607. The People v. Supervisors of Greene, Id. 217.) If the defendant has or might have had the funds, he is" equally bound to pay. (Adsit v. Brady, 4 Hill, 634.) The defendant alleges in his return that the whole of the moneys, being the sum of seventy thousand dollars, has been paid out by him, on warrants drawn upon that fund, and he claims that such payments were made by legal and 'proper warrants. He has furnished the court with a statement of the objects and purposes for which such payments were made, and he does not allege or pretend, 'that they were made to discharge accounts audited and allowed by the board of supervisors.

As I before intimated, I am of the opinion that this sum, which the legislature authorized to be levied and collected for “ county contingencies,” should in compliance with the statute have been paid into the county treasury, and that no payment, therefore, could legally be made, except in discharge of county charges, and which had been audited and allowed by the board of supervisors according to law. That the annual tax bill of 1856, expressly prohibits moneys raised for one purpose to be applied to another, and that the use of the moneys raised by taxation for “ county contingencies” to the payment and discharge of claims against the corporation, or for city contingencies, cannot be sustained. If the city have such charges and liablities to meet, such an item must be provided for in the annual tax bill, and because there are such liabilities which must be met, it is no reason, to my mind, why moneys which the legislature, have authorized to be raised for one object, and which they have solemnly declared shall not be used for any other" shall be thus misapplied, and the obligations, to discharge which the fund was raised, remain unpaid.

[New York Special Term,

December 20, 1856.

I am unable to perceive any serious embarrassment which will result from an adherence to these requirements of the law. Whether there may be or not, I am not at liberty to disregard them, and being satisfied that the relator is entitled to the relief asked for, the motion for the peremptory mandamus is granted, with costs.

Davies, Justice.]  