
    The People ex rel. Daniel E. Sutliff, Resp’t, v. The Board of Supervisors of Fulton County, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Certiorari—Supervisors—Fee for return.
    A board oí supervisors cannot be required to file its return to a writ of certiorari to review its audit of bills without payment of the fee therefor at the rate prescribed by § 2135 of the Code.
    2. Same.
    Section 3280 of the Code does not apply to such a case; it refers only to official duties.
    Appeal from order of special term, requiring defendant to file its return to a certiorari within ten days, or show cause why it should not be adjudged in contempt.
    
      N. H. Anibal (J. A. Dennison, of counsel), for app’lt; Smith & Nellis (John M. Carroll, of counsel), for resp’t.
   Herrick, J.

The relator presented to the board of supervisors of Fultoú two verified claims for audit and allowance. After investigation, the board rejected the greater portion of such claims. The relator subsequently commenced proceedings to review the actien of the defendant, the board of supervisors, and a writ of certiorari was granted by the supreme court directed to the defendants, for the purpose of reviewing their proceedings upon the audit of such claims.

z, , The defendant prepared the return to said writ but refused to 'file the same until the fees it claimed were allowed by law were paid by the -relator. The relator claimed the defendants was not entitled to any fees whatever for preparing and filing such return, and refused to pay any.

An order was granted at the special term requiring the defendant to file such return without the payment of any fees, and from such order the defendant appeals to this court.

The relator cites § 3280 of the Code of Civil .Procedure, as authority for the non-payment of fees. That section reads in part as follows: Each public officer upon whom a duty is expressly imposed by law must execute the same without fee or reward, except where a fee or other compensation is expressly allowed by law.” _ ”

_ I do not think obedience to a process of the court comes within the provisions or meaning of this section. It is not a duty expressly imposed upon them by law as public officers; it is not an official duty; the section refers only to official duties.

But assuming that obedience to such writ does come within the meaning of § 3280, still there is a fee or other compensation allowed by law for making a return to a writ of certiorari.

Section 2005 of the Code of Civil Procedure reads as follows: “A person upon whom a writ of certiorari, issued as prescribed in this title, is served, must in like manner upon payment or tender of the fees allowed by law for making a return to the writ, and for copying the warrant or other process or proceeding to be annexed thereto, obey and return the writ according to the exigency thereof.”

Under the name person is included not only natural but artificial persons, corporations and bodies corporate, whether municipal or otherwise. The board of supervisors in making a return necessarily acts through its officers and employees, and it is just as much entitled to the fees and compensation for making a return as a natural person. The only open question is, What is the fee? While the section I have quoted recognizes the fact that there is a legal fee allowed by law for making the return, I have been cited to no statute specifically stating what that fee is, unless it is § 2135 of the Code of Civil Procedure, that seems to fix the amount legally payable for making a return, and in the absence of any other statute we must be guided by that; the fee that is lawful for one class of persons to charge and receive must be the legal and proper fee for others to charge and receive from others for the same services.

There is no reason why any different rule should prevail as to boards of supervisors than prevails as to other persons against whom writs of certiorari issue.

The order of the special term should be reversed, with ten dollars costs and printing disbursements.

Matham, P. J., and Putnam, J., concur.  