
    The People ex rel. Joel B. Morrison, App’lt, v. The Board of Supervisors of the County of Hamilton, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    1. Supervisors.
    A board of supervisors has a two fold position; it is a tribunal for passing upon claims against the county, and it is also the representative of the county against which the claims are presented.
    2. Same—Mandamus.
    In the latter capacity when there is no question of fact, and when such payment is a plain matter of duty, the board may be compelled by mandamus to pay a claim, and it is not necessary to resort to certiorari.
    
    3. Same—Audit op accounts.
    Where the facts are clear the board will not be allowed to audit a claim at a less amount than the facts justify, and then take the position that in making the reduction it acted judicially and therefore conclusively.
    4. Same—Waiver op rights op claimants.
    By accepting a check for other services rendered, but which also included the amount of the item here in question, the relator did not waive his right to take legal steps to recover the amount of that item disallowed.
    Appeal from order denying motion for a peremptory writ of mandamus to require the board of supervisors of Hamilton county to audit, allow and provide for the payment of petitioner’s claim to the amount of $360 and interest.
    
      Eelator’s newspaper was designated by the board of supervisors as one of the official newspapers of the county. At the annual session in 1887 relator presented to the board a bill for public printing amounting to $1,046.80, which included an item o£ $420 for printing the redemption list of lands sold for taxes. Of this item the board rejected and disallowed the sum of $360. Thereafter relator received a check for $686.50 for the balance of said bill. He then made the motion for a mandamus, whitih was denied.
    
      Clarence W. Smith, for ap¡3’lt; John M. Carroll, for resp’t.
   Learned, P. J.

A board of supervisors has a two-fold position. It is a tribunal for passing upon claims against the county and it is also the representative of the county against which the claims are presented. And because it is such representative the court may properly compel the board to pay claims, when jhgre is n^,question ofjfacLtoJqe decided,, and where such payment is a plain matter of dutyjandT not of discretion.

There is noLEspute about the facts_in this case. The board designated "two papers, one" "of "which is tire relator’s, to do the public printing, and established the price to be paid. The comptroller sent to the relator’s paper the redemption list (so called) of lands sold, to be published as required by law. The relator published the list, as was his duty. He rendered a bill to the board for printing, which included an item of $420 for publishing this list. The board allowed the bill; except that for the publishing this list they allowed,only sixty dollars. The total amount allowed was $686.50; for which the clerk gave him a check which was paid. He now seeks by mandamus to compel the payment of the balance, $360.

The first point made by the defendants is that under chap. 515, Laws of 1886, the relator’s paper was not properly designated. Ho such allegation is made in the opposing affidavits. And it will be seen by that law that, in a certain case, the board may designate the papers by resolution. We ought not to assume, with no proof as the subject, that this case did not exist.

In the case of People ex rel. Thompson v. Supervisors of Hamilton County, 73 N. Y., 604, the question was whether under chap. 662, Laws 1870, the supervisors had power to determine whether there should be one or more newspapers designated. The court held that the board had this power, and that, as they had designated one only, the comptroller was not authorized to publish in another also.

But in this case two papers were designated; no question was made as to the manner of designation; the relator has acted thereon; and the defendants do not now set up any facts showing that a designation by resolution was not proper. It is true that the language of the resolution is : “ to do the public printing ” while the language of the act last cited is: “ to publish the laws.’’ But it is plain that the publication of the session laws was intended Such publication was included in the relator’s bill, and was paid by the defendants and in their opposing affidavits they make no claim that the resolution did not include the publication of the session laws. It was their duty to make a designation and they made no other than this. The words “ public printing ” are broad enough to includeThe publication of the session laws.

The next point of the defendants is that in auditing and allowing the relator’s bill at sixty dollars, they acted judically and their determination is conclusive. It must be conceded that, where a question of fact is to be determined by the board, such as the amount of work done for which a claim is made, or the value of such work and the like, there the board has a right to decide; and mandamus will not lie.

But on the other hand, where no question of fact exists; where the amount of services rendered is undisputed; and where the rate of compensation is established by law or by undisputed contract, so that on the facts a clear, positive, unquestionable duty exists that the board should pay the claim, then the board cannot evade this duty by saying that the board is a quasi judicial tribunal. It may not always be easy to draw the line, but such we understand to be the settled distinction. The latest case in which this matter was discussed is People ex rel. Myers v. Barnes, 114 N. Y., 317; 22 N. Y. State Rep., 164; 23 id., 795, which case was heard a second time on a motion for a re-argument. While the court held that, in that case, mandamus would not lie, the decisj ion was on the ground that there was a disputed state of facts. And it was admitted that if the claims were made by statute or by some settled rule of law legal charges, the case would have come within the cases of People ex rel. Johnson v. Supervisors Delaware County, 45 N. Y., 196, and People ex rel. Michael Thurston v. Town Auditors Elmira, 82 N. Y., 80. The same doctrine is found in People ex rel. Kinney v. Supervisors Cortland County, 58 Barb., 139.

But the defendants insist that where on undisputed facts it is the duty of the board to allow a claim at an amount determined by statute or contract, yet that if they refuse to do this, such refusal is an error of law, which must be reviewed only by certiorari.£PLere, however, they overlook what was pointed out above, viz., that the board of supervisors is not solely a judicial tribunal ; but it is, also, the person, or the representative of the person, which owes the debt. If the board were merely a judicial tribunal, the court would not by mandamus control its actionj! But it is the official body charged with the duty of causing the’debts of the county to be paid. And when there is no question as to the facts on which the debt arises and as to the amount of the debt then the board may be properly commanded to pay. To refuse to pay is not a mere error of law; it is a breach of duty.

A further point of the defendants is that the relator has lost his rights by accepting the check which included part of his claim. We think not Most of that check was for the rest of his bill. He could not divide the check, and was not bound to lose what was paid him. There was no compromise of a disputed claim. There was only a payment of a part of "what was legalty due. In People ex rel. McDonough v. Board Supervisors Queens, 33 Hun, 305, there was a dispute ag to the facts, and the amount allowed and accepted was stated to be in full. Such is not the case here. See on this point People ex rel. Kinney v. Supervisors Cortland County, ut supra. If, as we have shown, the board had no judicial discretion to exercise, a part payment does not satisfy the claim.

It was further urged by the defendants that the words “redemption list” in relator’s bill did not necessarily mean the notice to redeem lands sold for taxes issued by the comptroller. If the board had desired further evidence, when the bill was presented, they might have so stated. But it does not appear that any doubt existed as to what the bill meant. In the affidavits used on this motion the matter is explained fully, and the defendant’s affidavits make no denial. It is evident that the matter was perfectly understood.

Order reversed, and peremptory mandamus granted, with $50 costs and disbursements.

Landon and Mayham, JJ., concur.  