
    The People, ex rel Kinney, vs. The Board of Supervisors of Cortland County.
    To provide in advance for the official printing of the several county officers, is no part of the duty of a hoard of supervisors.
    The board has no authority or power, except what is derived from the statute; and the statute does not authorize or empower them to contract, in advance, for such printing.
    They have no power or authority to direct the clerk of the board whom he shall employ to do his. official printing; or to direct, in advance, what price he shall pay, or agree to pay.
    When a bill is presented, for services rendered to the county, the supervisors—• unless the compensation for such services be fixed by law, authority, custom or binding contract—have to consider and pass upon the charges, and allow such sum as in their judgment is right and proper. In such cases, they have a discretion, which will not be interfered with by a mandamus directing how that discretion shall be exercised.
    If the statute prescribes the sum to be received for such services, the board are required to allow the bill according to such statute. They have no discretion over it.
    If the sum is fixed by a binding contract, the board are equally bound to allow the bill, in accordance therewith.
    The contracts of a county clerk, in the name of the county, for printing necessary and proper to enable him to perform the duties of his office, are binding upon the county.
    And an individual having been employed by a county clerk or surrogate to do his printing at an agreed price, such employment being within the scope of the clerk’s or surrogate’s authority, and the sum agreed to be paid being no more than a reasonable compensation for the services, the board of supervisors are not at liberty to interfere with such contract, but should cause to be levied and paid the amount due thereon.
    The relator having done printing for the sheriff, at his request, but without any contract as to the price, such printing consisting of legal notices required by law to he published; Held that he was entitled to charge therefor the sum allowed by law; and that the board of supervisors should have allowed him that amount, without any deduction.
    When the statute allows an individual to collect, for a service rendered the county, not more than a sum specified, he cannot be compelled to take less.
    When a newspaper is designated by a board of supervisors as one of the papers in which the session laws shall be published, in the absence of any contract with the proprietor, as to his compensation, he is entitled to the compensation prescribed by law; and the board of supervisors has no right to reduce the allowance to him below that amount.
    After a board of supervisors had passed upon an account presented by the relator, it caused to be made and delivered to him, an order on the treasurer, for the payment of the amount allowed. The relator refused to receive it in full of his claim, and notified the person handing it to him that he should at once commence a proceeding to compel the board to allow him the balance claimed. He subsequently tendered back the order to the same person, who refused to receive it. He afterwards received, and retained, the avails of the order. Eeld that the relator was not estopped, by this act, from disputing the correctness of the action of the board.
    And that the act of receiving the money on the order, and retaining it, was no accord and satisfaction, because the relator refused to receive it in full.
    APPLICATION for a mandamus, to be directed to the defendants, requiring them to audit and allow certain claims of the relator against the county of Cortland, for printing.
    The action was tried at a special term, before Justice Murray, without a jury, a jury trial having been waived by the parties. Such justice, after hearing the proofs and allegations of the parties, found the following facts :
    On the 21st of November, 1868, the board of supervisors of the county of Cortland passed a resolution that its clerk should, for two weeks after that date, receive sealed proposals for printing, per folio, all blanks and the court calendars necessary for the use of the county judge and surrogate, also for the district attorney, sheriff and the county clerk; and that each of said officers be required to certify and report to the board the number of folios of printing that should be done for them, respectively, to supply them with such blanks. That the said clerk, on the 8th of December, 1868, at 2 p. m., should open said sealed proposals, in the presence of the board; which should award the contract for such printing to the lowest responsible bidder. The clerk gave notice and received proposals in pursuance of said resolution. Three proposals were made, and opened, on the said 8th of December, among which was one by B. B. Jones, that he would print the blanks for the use of the several officers, for thirty cents per folio for the first hundred, and twelve cents per folio for each hundred after the first; court calendars for ninety cents per page, in proper binding. The board adopted a resolution that its clerk be requested to enter into a contract with said Jones to furnish the blanks for the use of the several county officers, and also the court calendars, in accordance with his offer, and notify the several county officers of said contract, and request them to give all orders for what blanks they might need in their respective offices to the said Jones, a reasonable time before they were needed. The clerk gave notice to the several officers, in accordance with said resolution. The relator made no proposition to do this printing. On the 20th of November, 1868, the said board duly elected the “ Cortland County Standard,” the paper of which the relator was proprietor, as one of the county papers to publish the session laws of 1869. There was no agreement between the relator and said board, as to what he should have for publishing the said laws. The relator had made no proposition as to what he would do it for. During the winter, spring and summer of 1869, the relator duly published the laws of that year, of which there were 885 folios.
    The relator made out an account against the county, for printing done by him, under various contracts, according to the contract prices. That which was done at the request of the sheriff before May 11, 1869, was charged according to the act of 1859; that which was done after-wards was charged under the act of 1869. That the printing so done was worth what the relator charged, according to the usual rates charged by printers. That he charged, in his account for printing the session laws, $442.50, which was at the rate of fifty cents per folio, and his account was made up by adding the said $442.50 to an item of $357.70 for other printing, making, in all, $800,20. The relator presented this account to the board of supervisors, at its annual meeting, in November, 1869. The account presented was verified, and no objection was made by the board that it was not duly and properly verified. The account was referred to a committee of the board for examination. While the committee had it under consideration, the board, on the 17th of November, 1869, adopted a resolution that all the printers of the county who had printed blanks and court calendars for any of the officers of the county, should not be allowed any more for such printing, than the price agreed upon in the contract with Jones. Afterwards, the committee reported in favor of auditing the account at $313.10, without stating what items, or parts of items, of the account were rejected or allowed. The action of the committee was approved by the board. The committee of the board did not notify the relator that there was any objection to the account, or any part thereof. He was not called upon to explain, or to give evidence in regard to the account, or any item thereof.
    On the 11th of May, 1869, an act was passed, by the legislature, allowing printers, for printing the session laws, not to exceed fifty cents for each folio, and not less than thirty, as the board should determine. The relator printed 885 folios of session laws, which, at thirty cents a folio, would be $265.50, leaving only a balance of $47.60 to pay for the other printing, as allowed by the board. From this, the justice foqnd that the board had not allowed the relator what he was entitled to, for printing the session laws. He also found that the relator printed 118 pages of court calendar, which, at ninety cents a page, (the price specified in the Jones contract,) would amount to $106.20; and that the other printing, done by the relator, aside from the session laws, according to the prices in the Jones contract, would amount to $107. From this he found that the board, in auditing the relator’s account, had allowed him, for printing the session laws, $100, and for the other printing according to the Jones contract.
    The board caused an order to be drawn on the treasurer of the county, in favor of the relator, for the amount thus allowed him, in full of his account, and caused one of its members to deliver the same to him. The relator received it, saying, however, he would not receive it in full of his claim, and that he would commence a proceeding, at once, to compel the board to allow the whole account. He afterwards tendered back to the person of whom he received it, the sffid order. This proceeding was then commenced. The relator received the avails of the order, and still has them, and has not paid the same into court. The balance rejected amounted to $487.10.
    The judge’s conclusions of law were that the relator was not estopped from disputing the correctness of the action of the board by having received and retained the order, and the avails thereof, in the manner he did. That it did not constitute an accord and satisfaction; and it was not seeking to recover a split up claim in another action. That the relator was entitled to have that portion of his account which was for services done under contracts with the clerk and surrogate, audited and allowed by the board at the contract prices; and that portion of the account which was for printing done at the request of the sheriff and clerk of the board of supervisors should be audited and allowed, as charged in the account, at the rates fixed by the acts of 1859 and 1869. That the printing done for those four offices amounting, according to the contract prices, and according to those acts, to the sum of $357.70, there should be deducted from that amount the money received by the relator on said order, $313.10, leaving a balance of $44.60. That the relator was entitled to interest thereon from the 1st of February, 1870, to May 19, 1870, the date of the decision, amounting to $0.93, which, added to $44.60, amounted to $45.53; which the relator was entitled to be allowed and have audited. And that the relator was entitled to have the said board pass upon his account for printing the session laws, and allow him for printing 885 folios, at not less than thirty cents a folio, and not more than fifty, as they should determine; and when the account was so audited and allowed for printing the session laws, the board should add the amount thereof to the aforesaid #45.53, allowing interest thereon from the 19th of May, 1870, and cause the whole amount to be levied and collected, and paid to the relator.
    
      A. P. Smith and M. Goodrich, for the relator.
    
      M. M. Waters, for the defendants.
   Murray, J.

In December, 1868, the board of supervisors of Cortland county contracted in advance for all the printing required by the county officers of that county for the coming year, at a fixed price, with one Jones. The county officers did not regard that contract as binding upon them, and each employed the relator to do his official printing. The clerk and surrogate agreed with him, as to the price of the printing done for each of them. The price agreed upon was reasonable, and according to the usual rates charged by other printers, for the like services, but more than Jones had contracted with the board to do it for. At the annual meeting of the board, in November, 1869, the relator presented his bill for printing done for the clerk and surrogate, according to the pric.e agreed upon between him and them, and the printing done for the sheriff, according to the rates by statute, and for printing the session laws. The board, regarding the contract it had made with Jones for the printing of that year, as binding upon those officers, audited and allowed the relator’s bill according to the rates prescribed in the Jones contract. If the board was right as to the binding nature of that contract, it was right in allowing the bill according to it. The relator, knowing of such contract, and agreeing to run the risk of getting his pay according to the contracts made with such officers, stands in no position by which he can be protected from the consequences of such contract.

To provide in advance for the official printing of the several county officers is no part of the duty of the board of supervisors. The board, in performance of its duty, is governed by the statute. It has no power or authority except what is derived therefrom. The statute does not authorize or empower them to contract, in advance, for such printing. (The People ex rel. Hasbrouck v. The Board of Supervisors of the County of New York, 21 How. Pr. 322. S. C. 22 id. 71.) It leaves those officers to perform their duties under the direction of the statute, untrammeled and uninfluenced. They take an official oath for the faithful performance thereof, and are responsible to the power that gives them their official existence, for the manner in which they do it, and are liable to impeachment in case they corruptly neglect or refuse to perform their duty. The supervisors have no supervisory power over them. They have no power or authority to direct the clerk whom he shall employ to do his official printing. They have no power to direct, in advance, what price he shall pay or agree to pay. That trust has been reposed by the people in him, and what he does as such officer is entitled to respect as the act of an officer of the county.

But the board occupy a very important position. Ho sum of money can be collected of the people, for the payment of bills, except by its action. All bills against the county are to be presented to and audited by it. Unless the sum for such services be fixed by law, authority, custom or binding contract, its members have to consider and pass upon such charges and allow such sum as in their judgment is right and proper. In such cases their judgment cannot be interfered with by any court on an application for a mandamus. In those cases they have a discretion, and no court will interfere by mandamus, to direct how that discretion shall be exercised. (1 Cowen, 417. 30 How. Pr. 173. 33 Barb. 603. 26 id. 118. 1 Hill, 362.)

If the statute prescribes the sum to be received for such services, the board are required to allow the bill according to such statute. It has no discretion over it. The legislature has passed upon the question, and the board can only carry out its requirements. If the sum is fixed by a binding contract, the court is equally bound to allow the bill in accordance therewith. In this case the clerk and surrogate contracted with the relator to do the printing he did for them, at a specified price. The several contracts of the clerk were for the printing necessary to enable him to perform the duties of his office. It was legitimate and proper printing for him to procure to be done. (21 How. Pr. 322. 22 id. 71.) As to such printing, his contracts in the name of the county were binding upon the county. (3 Wend. 193.) "The clerk could have paid for the printing, himself, and presented his bill for the money paid. (18 John. 241.) He could procure the printing to be done on the credit of the county, as is usual, and the person doing it could present the bill and be entitled to be allowed the price agreed upon between him and the clerk. The relator having been employed to do his printing at an agreed price, it being within the scope of the clerk’s authority, the sum agreed to be paid being no more than a reasonable compensation for the services, the board is not at liberty to interfere with-that contract, but should cause to be levied and paid the amount due thereon. ■ If a dealer or mechanic makes a contract with a public officer, in the name of the county, as to a matter within the scope and authority of that officer, and a contract he had a right to make, it is binding upon the county, and must be performed, the same as if it was between two private individuals.

It is insisted, on the part of the board, that the Jones contract was much more favorable to the county than the relator’s contract, and the clerk, knowing what Jones was to do the printing for, had no right to make a contract agreeing to pay a greater sum. If it was claimed that there was a fraudulent contrivance between the clerk and the relator, to cheat the county, this would be an important circumstance for consideration. I do not understand from the return and pleadings that any such issue is presented. Heither do I understand it to be claimed, on the trial, that there was any such fraudulent contrivance. It can hardly be questioned that the parties to the transaction acted in good faith. Indeed the clerk testified that he considered the terms he made better for the county than the Jones contract, but I think it did not turn out to be so. Fraud would vitiate the contract he made with the relator. But if there was no fraud, the fact that he agreed to give more than the Jones contract, has no legal effect. It in no way changes the legal aspect of the case.

The same reasoning is applicable, in all respects, to the contracts the relator made with the surrogate. The contracts made with him were similarly situated; the same conclusions must be had as to them.

As to the printing done for the sheriff, there was no contract as to the price. The sheriff requested the relator to do it.. He did it, and charged, for all that was done before the 11th of May, 1869, according to the law of 1859, and all subsequent to that time, according to the law of 1869. The printing consisted of legal notices required by law to be published. Chapter 252 of the laws of 1859 provides that the proprietor of any newspaper may charge and collect, for publishing any notice, order, &e., not more than seventy-five cents per folio, for the first insertion, and thirty cents for each subsequent insertion. Chapter 831 of the laws of 1869, passed May 11, 1869, so amends the act of 1859 as to allow the printer fifty cents per folio for each subsequent assertion. By these acts the printer is allowed to collect not more than the sum specified. He cannot be compelled to take less. The statutes say he may collect that sum. The board has not the power to say it will not allow him to collect so much; that would be coming in direct conflict with the acts; it would be defying their power. That, the board, I am. very sure, did not design to do. Therefore the bill for the sheriff’s printing should have been allowed without deduction in this respect. I do not express an opinion upon the question whether the act of 1869 does not govern the charges in the whole bill for sheriff’s printing; notwithstanding a part of the services were performed before the act was passed. Because I understand those services performed before the act was passed were charged in the bill according to the act of 1859, which renders it unnecessary to consider that question.

There is still another view to be taken of the action of the board upon this account, aside from the session laws, from which the conclusion is derived that the action of the board was erroneous. It did not pass upon the account, otherwise than to ascertain how much it would come to, allowing for the different items the prices specified in the Jones contract; that contract had no binding force upon it; it should not have been taken as a guide in its action upon the account. If there had been no law or contracts by which it was required to allow the different items so as to bring it under its discretion, it should have examined each of them, if necessary, taken evidence, heard proofs and explanations from the relator, clerk and • others, and with the best lights they could get to guide the members of the board, determined what, in their judgment, was right and proper to be allowed for such services. That it has not done. Under these circumstances, the board would be required to act upon the matter. (Hull v. The Supervisors of Oneida, 19 John. 259. Plumb v. The Supervisors of Cortland, 24 How. Pr. 119.) As to printing the session laws, the paper of which the relator was proprietor was one of the papers duly selected to perform that service. There being no contract with him, as to his compensation, he became entitled to the compensation the law prescribed. By chapter 831 of the laws of 1869, it is provided that for printing the session laws the printer shall receive not less than thirty cents per folio, and not more than fifty. There were 885 folios. At thirty cents, it would amount to $265.50; at fifty cents, it would amount to 442.50. The board allowed him only $100. The act of 1869 is to be the guide in determining the compensation to be allowed, notwithstanding a part of the services were performed before the act was passed. The relator was entitled to be allowed not less than $265.50, and not more than $442.50, as the board should determine. Any amount over the minimum sum, and less than the maximum, was in the discretion of the board, and its determination will not be reviewed on a trial like this. The board, therefore, was in error in reducing the allowance to less than $265.50. They had no power to do so, in the absence of any contract with the relator. In all this, there is no doubt that the board acted in perfect good faith, with the best of motives, with a commendable desire to lessen the expenses of the county, and reduce taxation upon the people. But at the same time when public officers are striving to protect and serve the public, they should be careful not to overlook, override or interfere with private rights and private contracts.

After this action of the board upon the relator’s account, it caused to be made an order on the treasurer, directing the amount allowed him to be paid. The order was delivered to a member of the board, to be handed to the relator, which was done. The relator refused to receive it in full of his claim, and notified the person handing it to him that he should at once commence proceedings to compel the board to allow him the balance. He subsequently tendered back to the same person the order, but he refused to receive it. The relator afterwards received, and still has, the avails of the order. It is insisted that under these circumstances the relator is estopped from disputing the correctness of the action of the board. At the close of the trial, I was of that impression, but on reflection have come to a different conclusion. This, in the main, was a matter over which the board had no discretion ; its action was unauthorized. By this unauthorized action they allow him so much in full of his claim. It is tendered to him; he takes it, but refuses to take it in full. He tenders it back; the board refuse to receive it. He is not estopped, for the reason that the board has done nothing; it has been induced to do nothing; it has lost nothing, in consequence of his receiving or keeping that order. The principle of disaffirming a fraudulent contract in actions to recover back what the party defrauded may have advanced thereon, does not apply to this proceeding. In such case there is a contract; if affirmed, the party cannot recover back. The party cannot disaffirm a contract, unless he restores the other party to his former condition. There is no contract, in this case, between the board and the relator, to affirm or disaffirm. The disaffirmance of an unauthorized proceeding before the board does not require that he shall restore all that he may have received thereon; that is, if he does not, it does not amount to an affirmance, as in the case of a fraudulent contract. I see nothing, upon principle, that precludes the relator, with that money in his pocket, from compelling the board to readjust his claim, and when readjusted, applying that money as a payment thereon. The principle in regard to splitting up claims has no application, in this case; it is not sought to recover part of a claim. The application is to readjust the whole claim, and treat the money in his hands as a payment. It is no accord and satisfaction, for the reason that the relator refused to receive it in full. (9 Bosw. 290, 299. 14 Wend. 100. 19 id. 516. 18 N. Y. 448.) The most analogous principle is in regard to appeals. The receiving of the avails of a decree in equity is no waiver of the right of appeal. (Dyett v. Pendleton, 8 Cowen, 325. Clowes v. Dickenson, Id. 328. Higbie v. Westlake, 14 N. Y. 281.) The relief established is substantially, though not precisely, what is demanded in the alternative mandamus. Therefore it is proper that a mandamus should issue to compel the board, at its next annual meeting, to audit and allow the relator’s claim for printing for the clerk, surrogate and sheriff, as presented, deducting therefrom the $313.10 received by him; to allow him interest on the balance, from the 1st of February, 1870; and' to consider and pass upon his claim for printing the session laws, consisting of 885 folios; auditing and allowing him on this claim not less than thirty cents per folio, and not more than fifty cents; and to determine at what it should be allowed. Then to audit, levy and collect the whole bill thus adjusted.

[Cortland Special Term,

May 2, 1870.

The relator should be allowed costs of this proceeding.

Murray, Justice.]  