
    The People ex rel. The Board of Commissioners for the Erection of a New Courthouse in Oneida County, Henry J. Cookinham et al., Relators, v. The Board of Supervisors of Oneida County, Defendant.
    (Supreme Court, Onondaga Special Term,
    December, 1901.)
    Constitutional law — Commissioners to build a courthouse are not, county officers — Legal deprivation of supervisors of some of their duties — Local bill embracing more than one subject — Ministerial duties enforcible by mandamus — Peremptory writ — Constitutionality pf L. 1901, eh. 89.
    A special act (L. 1901, cb. 89), constituting certain residents of a county commissioners with power to acquire a site for and furnish a new courthouse and sell the old one and also requiring the county board of supervisors to borrow money and issue bonds to pay the expense, does not make the commissioners county officers within the Constitution of 1894, art. X, § 2, requiring county officers, whose election or appointment is not provided for by the Constitution, to be elected by the county electors or appointed by the county authorities.
    The act does not unduly deprive the county board of supervisors of its legitimate duties, merely effects a permissible modification of them and lawfully directs that certain of them shall be performed by agents selected by the Legislature.
    The act does not violate the said Constitution, art. Ill, § 27, enacting that the Legislature shall “ by general laws ” confer upon boards of supervisors such further powers of local legislation and administration as the Legislature may from time to time deem expedient.
    The Legislature may by special act deprive a board of supervisors of the right to büild a courthouse.
    The act is not unconstitutional as requiring the county to contract against its will, i. e., issue bonds when the board of supervisors is unwilling to do so, for, the Legislature has power to compel the board to issue them.
    The act is not unconstitutional as a local bill embracing more than one subject, in that it also authorizes the sale of the old courthouse, as that sale is a proper adjunct of the main purpose of the bill, the building of a new courthouse.
    
      A writ of mandamus is a proper remedy to compel/ performance by a board of a ministerial duty plainly prescribed by statute.
    In determining whether a peremptory writ should issue, all relevant facts, stated in opposition to the application, must be deemed to be true.
    Where a valid statute plainly imposed upon a board of supervisors a ministerial duty to borrow money and issue bonds and the conduct of the board indicated its intention to disregard the statute, the court compelled it to act by issue of a peremptory writ of mandamus.
    Order to show cause why a peremptory writ of mandamus should not be issued out of this court: on behalf' of the relators above named, requiring and directing the board of supervisors of Oneida county to borrow upon the faith and credit of said county such a sum of money as shall be sufficient to meet and pay all the expenditures, which the said board of commissioners is authorized to make, pursuant. to chapter 89 of the Laws of 1901, and to issue the bonds of said county therefor in the sum of $350,000, as required by the provisions of said act, and by resolution of the board of commissioners for the erection of a new courthouse in Oneida county.
    Thomas S. Jones, for motion.
    Bradley Fuller, Matteson & De Angelis and McMahon & Larkin, opposed.
   Andrews, W. S., J.

Chapter 89 of the Laws of 1901 took, effect on March twelfth of that year. It constituted certain residents of Oneida county a board of commissioners to acquire a site and furnish a new courthouse in the city of Utica, for the use of the county, and to.sell the present courthouse and site' and the present county clerk’s office and site in Utica, and conferred upon them the power to acquire the land necessary for the purpose by purchase or by condemnation proceedings. " It then regulated the organization and proceedings of the board and directed that it should “ cause to be erected, completed and furnished, ready for use, a suitable building,- upon the site acquired, for the use of the county .of Oneida, as a courthouse and for other public purposes.” For this building the board was to adopt plans, let contracts and superintend the construction, but the entire cost of the whole proceeding was not to exceed $350,000. The expense incurred was to be borne and paid by the county of Oneida, and it was made “ the duty of the board of supervisors of said county of Oneida to borrow, upon the faith and credit of said county, such a sum of money as shall be sufficient to meet and pay all the expenditures which the said board of commissioners is authorized by this act to make, and to issue the bonds of said county therefor, bearing interest at a rate not exceeding three and one-half per centum per annum, payable semi-annually; the principal of said bonds shall be made payable at such time and times within forty years from the respective date of issue, and such amount in each and every year from the date of issue, as shall be fixed and determined by the board of supervisors of said county, excepting, however, that not less than seven thousand dollars of the principal of said bonds shall be made payable and shall be paid in each and every year.” Regulations were then made as to the form of the bonds, and it was provided that they should be issued and negotiated by the county treasurer “ as the proceeds thereof shall be required by said board of commissioners for the purposes provided for in this act.” This officer was to keep a separate account of the moneys raised upon the bonds and pay therefrom “ upon the order of said board of commissioners, from time to time, such amounts as shall be required to pay the expenditures which said board of commissioners are empowered by this act to make.” Finally, the act directed the commissioners to sell the present courthouse and the present county clerk’s office and to pay the proceeds of such sale to the county treasurer to the credit of the county of Oneida.

In pursuance to this statute the commissioners met on March 30, 1901, and organized by the election of a chairman and secretary. Thereafter, on May thirteenth, the board selected a site upon which to erect the building, and passed a resolution requesting the board of supervisors to issue the bonds of the county for the purposes specified in chapter 89 of the Laws of 1901, and place them in the hands of the county treasurer. On May twentieth a copy of this resolution,. certified by . the chairman and clerk of the board of commissioners, was mailed to each supervisor of the county of Oneida, and also to the board itself in care of its clerk. A special meeting of the board of supervisors was thereafter called for the 17th day of June, 1901, for the purpose of taking action upon the request of the board of commissioners. At such special meeting the resolution and request of the commissioners was received and placed on file, but the board of supervisors adjourned without taking any action thereon.

The regular meeting of the board of supervisors occurred in the fall of 1901, and on the twenty-second day of November a resolution was presented, reciting the statute referred to, the action of the commissoners and their request and directing the issue of $350,000 worth of bonds in the form specified by the statute. No objection seems to have been taken to the form of this resolution, or to the provisions contained in the proposed bonds, but the resolution was defeated by a decisive vote. Thereafter, and on the same day, a second resolution was presented which stated that the act of the Legislature was taken without any expression of a desire by the people of the county, and that they were overwhelmingly opposed to. the construction of the courthouse, and, therefore, requested the Legislature to amend chapter 89 by submitting the question, as to whether or not the courthouse should be built, to the people of the county. This resolution was adopted.

This is the only action taken by the board of supervisors on the subject of borrowing money" or issuing bonds for the erection of the courthouse, and the annual session of the board will shortly end. Without some action by the board the commissioners are wholly unable to discharge their duties; they are without funds and cannot obtain funds, except as provided by statute. The board has directed the immediate institution of condemnation proceedings to acquire property included in the proposed site, and the necessity for money is present and imminent. Therefore, in consideration of these facts, and on November 26, 1901, the commissioners resolved that the present proceedings should be instituted.

The affidavits presented by the defendant in answer to the application put at issue none of the facts alleged. They show that prior to the act of 1901 the board of supervisors of Oneida c.ounty had initiated proceedings to build a courthouse in Utica, as they were authorized to do under the general County Law. A committee of investigation had been appointed in April, 1900; they made a favorable report in the fall of that year, and the board adopted a resolution expressing their decision to erect a courthouse at an expense not to exceed $150,000, and appointing a special committee to have charge of the building, to call for options for sites and to report to the board. The committee so appointed had conferences with representatives of the Utica Chamber of Commerce and with representatives of the bar of Oneida county, prepared blank forms of .options, contracted with architects for preliminary work, incurred considerable expense in various ways, received options, and was about to report its decision when the board of supervisors was served with an injunction, obtained in a taxpayer’s action, prohibiting it from proceeding farther in this matter. This injunction was subsequently vacated on the ground that the papers on which it was obtained did not justify its issuance. Subsequently, the board was informed that another similar injunction had been obtained and would be served if it should take any further steps toward the construction of the courthouse. The affidavits then deny, on information and belief, that the board of commissioners has made any contract binding upon it for the purchase of any parcels of land, and deny that any condemnation proceedings have been instituted. They further allege that the “ board of commissioners held no meeting on the 13th day of May, 1901, as alleged in the moving papers and that no resolution or notice of or from said board of commissioners was served upon said board of supervisors on the 16th day of May, 1901, as alleged in the moving papers.” Finally, the attorney for the board states that he is-familiar with the circumstances connected with the matter, and that he verily believes that the board of supervisors was acting in good faith, and would have built a suitable courthouse for the county of Oneida if it had not been interfered with.

Upon these papers the relators ask that a writ of peremptory mandamus be issued out of this court, compelling the board of supervisors to issue the bonds of the county in the sum of $350,000.

The defendant, on the contrary, claims that the papers presented raise an issue of fact upon material questions before the court, and, that, therefore, no peremptory writ should be issued. It also says that the statute, under which the relators claim to be acting, is unconstitutional and void, and, therefore, may not be enforced. And, lastly, it argues that .the issuance of a peremptory writ of mandamus is a discretionary matter, and that, under all the circumstances disclosed in this case, the court should refuse to grant the application.

It is not urged by the defendant that the remedy sought is not applicable. Such a proposition could not be sustained. A mandamus against a public officer or board is a proper remedy to compel the performance of a ministerial duty plainly prescribed, and it may be invoked in behalf of any party interested in its performance on the failure of the officer or board to do the act or thing required. People ex rel. Wooster v. Maher, 141 N. Y. 330. “ The primary object of a writ of mandamus is to compel action. It neither creates, nor. confers power to act, but only commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. * * * When the law requires a public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus, if there is no other remedy. When, however,. the law requires a judicial determination to be made, such as the decision of a question of fact on the exercise of "judgment in deciding whether the act should be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance.” People ex rel. Harris v. Commissioners, 149 N. Y. 26.

The duty of the defendant in this case would seem to be purely ministerial within the definition given. The statute makes it the duty of the board of supervisors to issue bonds of the county. It may, -it is' true, regulate the minor conditions contained therein, but the bonds themselves are to be issued. As to this the board is given no discretion; it is required to make no judicial determination; it may not exercise its judgment as to whether the proceeding is wise or not. We may, therefore, consider solely the questions raised by the defendant, and they can best be discussed in the order in which they are presented.

1. In determining whether or not this is a proper case for granting a peremptory writ of mandamus, all relevant facts stated in opposition to the application are deemed to be true. The proceeding is in the nature of a demurrer to the facts properly pleaded by the defendant. People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570.

Now, the matters denied by defendant’s papers, even assuming that denials on information and belief raise an issue, are wholly immaterial. Whether or not the board of commissioners has made contracts for the purchase of lands, or has begun condemnation proceedings, affects in no way its right to call upon the supervisors for action. Whether or not the commissioners held a meeting “ on the 13th day of May, 1901, as alleged in the moving papers,” or on some earlier or later day is unimportant. It is not denied that a resolution was properly adopted by them at some time and that this resolution came to the notice of the board of supervisors. Nor is the denial that the resolution in question was served upon the board of supervisors “ on the 16th day of May, 1901, as alleged in the moving papers ” any more material. As a matter of fact, the moving papers contained an allegation that it was served upon the supervisors on the twentieth day of May, but whether it was or not, I may again repeat, it was brought to the attention of the board. As to the various affirmative allegations that bear upon the question as to whether or not this court should, in its discretion, grant the writ prayed for, their effect will be considered later.

2. The principal argument of the defendant is that chapter 89 of the Laws of 1901, conflicts with section 2 of article N of the Constitution of the State. This section is to the effect that “ All county officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the Legislature shall direct. * * * All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.” It is said that the power to build courthouses in their respective counties has, for many years, been conferred upon the board of supervisors, and that the creation of a board of commissioners to erect a particular building for this purpose is the appointment of county officers by the Legislature and not by the electors of the counties or other local authorities, and that such officers are not county officers whose offices were created by law subsequently to the adoption of the Constitution. If either of these propositions is unsound the law is constitutional so far as this section is concerned.

In my opinion the board of commissioners are not county' officers within the meaning of this section of the Constitution. It is true that the boards of supervisors have conferred upon them by general laws, among other powers, that of constructing courthouses in their several counties, but it does not follow that because this power has been conferred upon county officers, as the supervisors undoubtedly are, that every one on whom the like power is conferred is a county officer.

Supervisors are constitutional officers. Their rights and duties generally are such as had for many years existed at the time the Constitution was adopted, and a law which deprived them of all their powers would, doubtless, be invalid. But, on the other hand, the Legislature may to some extent modify and regulate these powers. The test is whether the act called in question is an attempt to evade the fundamental law, or whether it is merely a permissible modification of the supervisors’ duties. People ex rel McEwan v. Keeler, 29 Hun, 175; Astor v. Mayor, 62 N. Y. 567; Matter of Mayor, 99 id. 570.

A statute, depriving a board of supervisors, of the .power to build a certain courthouse, seems to me to belong to the latter class. It is a power that in the nature of the case may be seldom exercised by the board, and even when this power is taken away the board remains substantially the board of supervisors.

If this be so the Legislature may compel the board by legislative enactment to provide for the construction of a courthouse, or the Legislature may itself direct the work, or it may commit the same to the care of agents selected by it. People ex rel. Dunkirk W. & P. R. R. Co. v. Batehellor, 53 N. Y. 128; People ex rel. Kilmer v. Cheritree, 6 T. & C. 473. The agents so selected are not county officers.

The distinction is carefully stated in City of Syracuse v. Hubbard, 64 App. Div. 587, If the Legislature, in providing for the accomplishment of a particular specific object which it has power to accomplish, designates some person to perform a specific duty that might be performed by a local city or town officer, the fact that such person is charged with that duty does not make Mm a city or town officer witMn the meaning of the Constitution so long as the general duty or functions of the local officers are not interfered with.”

This definition is sustained by Sheboygan Co. v. Parker, 3 Wall. 93; People ex rel. Kilmer v. McDonald, 69 N. Y. 362; Greaton v. Griffin, 4 Abb. Pr. (N. S.) 310; Hanlon v. Supervisors, 57 Barb. 383, 397.

There may be considerable doubt whether the relators are public officers at all. Matter of Hathaway, 71 N. Y. 238; United States v. Hartwell, 6 Wall. 385; State v. Kennon, 7 Ohio, 546; Matter of Attorneys, 20 Johns. 492. But in view of People ex rel. Henry v. Nostrand, 46 N. Y. 375, and Matter of Ryers, 72 id. 1, it is better to restrict this decision to the determination that the relators are hot county officers.

It should perhaps be observed that in view of the language of the statute creating a park commission for the city of Hornellsville, People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360, has no bearing upon the case at bar.

It is next said that the act is in violation of section 27 of article III of the Constitution, which provides that “ The Legislature shall, by general laws, confer upon the boards of supervisors of the several counties of the State such further powers of local legislation and administration as the Legislature may, from time to time deem expedient.” It is said that such powers being conferred by general laws it follows by implication that the Legislature may not enact a special act depriving the supervisors of any county of the powers possessed by them. This proposition is not sustained by authority, and general usage and practical construction, if nothing else, seem to show that the contention of the defendants is erroneous.

It is also said that the act is unconstitutional because it requires the county of Oneida to make a contract against its will, to wit, to issue bonds to raise the fund for the erection of a new courthouse. I know of no provision which deprives the Legislature of this power.

Lastly it is said that the act is unconstitutional because it is a local bill embracing more than one subject. Not only does it treat of building a courthouse but of selling the old site. The argument is unsound. The main purpose of the bill is to confer upon the commissioners appointed the general power to erect and furnish a new courthouse in Oneida county. As a part of this scheme all matters fairly and reasonably connected with it and all measures which will facilitate its accomplishment and are germane to it, may be incorporated in the act. Sweet v. City, 129 N. Y. 316; Matter of Mayor, 99 id. 570.

It would seem that the disposal of the present county buildings was legitimately and naturally connected with a plan to erect new ones; that it was entirely pertinent to such a plan and necessarily a part of it.

3. The defendant also takes the position that even assuming that this legislation does not violate the express provisions of the Constitution, still this court should, in its discretion, refuse the relief asked.for. It is said that the board of supervisors, .being possessed of the power, initiated steps looking to the construction of a courthouse; that while these steps were pending some person or persons pretending to be taxpayers of Oneida county improperly delayed action by use of the orders of the court, and that pending such delay, against the wishes of the taxpayers of the county, the bill in question was hurried through the Legislature.

It is perfectly true that the right to a writ of mandamus is not absolute, and that whether or not the court shall grant this particular relief rests largely in its sound discretion. People ex rel. Slavin v. Wendell, 71 N. Y. 171.

As is said by the Court of Appeals, The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to pro-mote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud.” People ex rel. Wood v. Assessors, 137 N. Y. 204.

But if there is any wrong committed in this case it consists in-the fact that the Legislature moved .by unworthy- motives, or unwisely, or unadvisedly has passed an act against the best interests of the county and which the majority of the voters in the county oppose.

Courts do not sit, however, to review the discretion of the Legislature or to determine the propriety or expediency of its acts. Its action is conclusively presumed to be just and wise and proper, and for a court to refuse to enforce the legislative mandate because it disagreed with the wisdom of the legislative course would be not the wise exercise of its discretion.

Assuming therefore that the act is constitutional, assuming, as must be done, the truth of the uncontested allegations contained in the papers upon which this application is made, we have a case where the supervisors are bound, as ministerial officers, to perform a certain act. This performance, it is true, they have not refused in words, but the whole course of their transactions, and particularly the resolution with regard to appealing to the Legislature in the future, shows an intent on their part to disregard the plain injunctions of the statute. It shows a determination to' refuse or evade the execution of the duty which the Legislature has imposed upon them. This should not be permitted, and where necessary their obligation to obey the statute should be enforced by mandamus.

It is possible that the supervisors might have refused to issue the total amount of $350,000 until the necessity arose, but there was a total failure on their part to act at all, and I do not understand that any question is raised as to how far the mandamus should go if one is allowed.

I am, therefore, of the opinion that the prayer of the relators should be granted and that a peremptory mandamus should issue as desired by them.

A proper order may he prepared by the attorney for the relators and if not agreed upon will be settled upon two days’ notice.

Ordered accordingly.  