
    The People of the State of New York ex rel. Jacob V. Smith, Relator, v. The Board of Trustees of the Village of Haverstraw and Others, Respondents.
    
      Compensation of a milage hom'd of health —■ rejection of a claim on the ground of want of power to pay it— the remedy is not hy certiorcm.
    
    Where a member of a village board of health presents a bill for his services to the board of trustees, and they reject it because of a supposed want of legal power on their part to pay it, his remedy is not by certiorari.
    Under such circumstances it cannot be said that the board of trustees have exercised any judgment whatever in reference to the fairness and reasonableness of the compensation asked.
    
      Semble, that since the passage of chapter 480 of the Laws of 1895, a member of a village board of health is entitled to a fair and reasonable compensation for his services, to be fixed by the board of trustees of the village, notwithstanding the fact that when he took his office no appropriation for that purpose had been made by the trustees pursuant to that statute.
    
      Certiorari issued out- of the Supreme Court, and attested on the 25th day of August, 1896, directed to the Board of Trustees of the Village of Haverstraw and others, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings in regard to the relator’s claim for compensation as a member of the board of health of the village of Haverstraw for the year ending May 1, 1896.
    
      William McCauley, Jr., for the relator.
    
      Alonzo Wheeler, for the respondents.
   Willard Bartlett, J.:

The relator was a member of the board of health of the village of Haverstraw from the 7th day of May, 1895, to the 1st day of May, 1896, and between those dates rendered services as such member, which he claims were reasonably worth the sum of $100. During this entire period there was in force chapter 430 of the Laws of 1895, entitled “ An act to provide compensation for the members of boards of health in incorporated villages.” That statute in express terms, by its 1st section, authorizes and empowers-the boards of trustees of the several villages of this State to appropriate annually a sum not exceeding $500 for the payment of a fair and just compensation for their services, to the members of boards-of health in incorporated villages. By its 2d section, the act provides that the members of such boards of health “shall be entitled to receive for the services rendered by them such fair and reasonable compensation as shall be fixed by the board of trustees.”

Ho appropriation has ever been made for the payment of any compensation to the relator or his fellow-members of the board of health for the year ending May 1, 1896. An appropriation of $500 is mentioned in the papers as having been made by the board of trustees prior to the village election in March, 1896, but that apparently related only to the future, and not at all to Mr. Smith and his associates in the outgoing health board. Hor have the village trustees ever fixed any sum as the fair and reasonable compensation of these gentlemen for their services as members of the board of health, under the 2d section of the act of 1895.

On the 11th day of May, 1896, the relator presented to the board. of trustees of the village of Haverstraw an itemized bill for services as a member of the village board of health on fifty different days in the year ending on the first day of that month. The aggregate amount of the items was $100. The bill was referred to the finance committee of the board, which reported that, inasmuch as the members of the board of health accepted their appointment under the law without compensation, the trustees were not warranted in paying the same. The full board accepted the report of the finance committee, and directed the bill to be returned to the relator, which was done.

The relator then sued out the present writ of certiorari.

We are of the opinion that he has mistaken his remedy. The board of trustees really made no decision or determination such as it is the office of a writ of certiorari to review. They did not pass upon the fairness or reasonableness of the amount claimed by the relator. The single sentence in their return declaring that they “ also believed that the claims were excessive ” does not affect its general tenor, which plainly shows that the board refused to audit the relator’s bill for want of legal power, as they supposed, to do so. In other words, by voting not to pay it, they really declined to exercise their judgment at all in reference to the items of the aggregate claim, and so declined to fix the relator’s fair and reasonable compensation as required by the act of 1895.

Eor this non-action on their part the appropriate remedy would seem to be a proceeding by mandamus. The statute declaring that the members of village boards of health shall be entitled to such fair and reasonable compensation as the board of trustees shall fix went into effect before the beginning of the relator’s term of office in May, 1895. Consequently there is no good reason for saying that he accepted the appointment without compensation, unless it is necessary that an appropriation to pay a member of the board of health under the 1st section-of the act of 1895 must always be made before his services are rendered. Such a construction, however, does not seem to be required. It might well happen that in the work done by a village board of health the value of the services could be judged much more accurately after they were performed than in advance of their rendition, and in such cases we can see no valid objection to paying for them by means of an express appropriation subsequently made. But, as has already been intimated, the appropriation made in March, 1896, appears to have been wholly of a prospective character, and is, therefore, not available to the relator. Before he can be paid he must have his compensation fixed by the village trustees and an appropriation made expressly for its payment.

The writ of certiorari should be dismissed, but without costs and without prejudice to such other proceedings as the relator may be advised to institute.

All concurred.

The writ of certiorari dismissed, without costs and without prejudice to such other proceedings as the relator may be advised to institute.  