Opinion
November Term, 1901.
R.O. Bascom, for the appellant.
Fred A. Bratt, for the respondent.
The final order appealed from is sought to be sustained, first, upon the ground that the relator has mistaken his remedy. In the return it is alleged that the claim was considered and dismissed upon its merits. It is undoubtedly true if upon fair judicial investigation the board of supervisors had determined that the moneys claimed were not expended by the relator in the prosecution of these charges before the Governor, the respondents would have audited the relator's claim, and the relator's remedy for an erroneous audit is by certiorari and not by mandamus. Upon the papers presented, however, it is apparent that upon a writ of certiorari no such investigation would appear as would present aught for review, and the relator would be sent back to his application for a writ of mandamus as in the case of People ex rel. Smith v. Trustees ( 11 App. Div. 108). The real ground upon which the bill was as a whole rejected, appears to have been the rejected claim of county liability for the expenses thus incurred, and it was thus considered by the trial judge in making his determination. If a legal audit had been made it was for the respondents to show that fact in defense upon the trial, and in reviewing a dismissal of the alternative writ at the opening of the trial the relator is entitled to the presumption that the respondents have failed properly to audit the said claim as charged in the writ.
Nor do we agree with the respondents in their contention that a rejection of said claim on the ground of non-liability is a judicial determination which can only be reviewed upon a writ of certiorari. In People ex rel. Morrison v. Supervisors of Hamilton County (56 Hun, 459) it was held that the rejection of a claim upon the ground of non-liability might be reviewed either by a writ of certiorari or by mandamus, as the action of the board was not only judicial but a refusal to perform a duty in respect to the payment of a claim which could be enforced by mandamus. This determination was affirmed by the Court of Appeals ( 127 N.Y. 654) upon the opinion delivered at the General Term. This application in form seems to be authorized by the case of People ex rel. Benner v. Supervisors of Queens County (39 Hun. 442).
Nor do we agree with the respondents in their contention that the claim should have been made by Smart individually and by Bascom, the attorney employed, instead of by the Taxpayers' League. Notwithstanding Smart appeared as an individual complainant before the Governor, nevertheless, if he were acting in behalf of the Taxpayers' League and if counsel were employed by that league, the league was liable for the expenses of both complainant and counsel, and I am unable to see why the league is not fairly entitled to reimbursement for any expenses incurred within the provisions of the act as well as would be the complainant himself or his counsel, had they been acting independently and not under the employment of the league. That the league is not incorporated cannot affect the question. A number of citizens have the right to join together for such a purpose with the same standing as would have a single individual, and the purpose of such an organization is laudable as well as legal. We find no cause in the record for the criticism of the relator contained in the respondents' brief.
We are thus brought to the consideration of the ground upon which this writ was dismissed by the Special Term. If it were necessary to have authority to act from the Attorney-General in order to make valid this claim the communication from the Attorney-General of June seventh, found upon page 23 of the record, would seem to constitute such authority for incurring at least part of the expenses for which this claim is made. But we are unable to find any sufficient reason for giving to the statute the restricted interpretation adopted by the learned trial judge. The provision cited is a substantial re-enactment of chapter 323 of the Laws of 1874. The history of that law is set forth in the opinion of Justice BARNARD in the case of People ex rel. Benner v. Supervisors of Queens County ( supra). It appears that there had been an unsuccessful charge of malfeasance against the sheriff of Clinton county. The district attorney had employed counsel to prosecute. The matter was referred, proof was taken and the sheriff successfully defended. In that case an allowance was made by the Legislature, not only to the prosecuting attorney and to the referee, but also to the defendant as compensation for his disbursements. In the same act it was provided that in all proceedings thereafter before Governors for the removal of county officers upon charges preferred against them, "the costs and expenses thereof, including those of taking and printing the testimony therein, shall be a county charge upon such county." This legislation was re-enacted in the Laws of 1892 with the amendment providing that "the reasonable costs and expenses" in such a proceeding should be a charge against the county. This legislation, in view of the allowance made in the very enactment in which it is first found, would seem to me to negative the rule of law as held by the learned trial judge. Without legislation I know of no rule of law which would make the State liable for counsel employed by the district attorney to prosecute such charges, nor for the expenses and disbursements incurred by the officer charged in his defense. A private citizen clearly had the right to make and prosecute charges before the Governor. The statute does not limit the right to reimbursement to counsel employed by the Governor or employed by the Attorney-General. For the court to add to the statute a restriction not included by the Legislature would be unwarranted judicial legislation.
Nor does the fact that the county might be subjected to numerous bills of expenses warrant the court in placing in the statute a limitation which the Legislature has omitted. It is probable that the court would interpret the reasonable costs and expenses of a proceeding before the Governor, as such costs as are incurred in a proceeding instituted upon reasonable grounds. With that interpretation there could be no fear of an excessive liability to the county, and the same policy of the law which protects a prosecutor of crime where there is probable cause to believe in the commission of the crime, might be urged to encourage one making charges against a public officer where there is probable cause for belief in his guilt. That there was probable cause in the case at bar would seem to be indicated at least prima facie by the resignation of the sheriff, and by his conviction upon the same charges which were presented to the Governor by the relator.
We are, therefore, of opinion that for such expenses and disbursements as were reasonably made by the relator in the prosecution before the Governor, after the filing of the charges, the relator is entitled to reimbursement. As to what those expenses and disbursements were, the respondents must, in the first instance, determine, subject to review by the writ of certiorari, in case error is claimed to have been made in such determination. In the return to the alternative writ a legal audit is claimed to have been made, and upon that audit the relator's claim rejected. That issue the defendants are entitled to try, and for such purpose a new trial should be granted.
Order appealed from reversed, and new trial of the issues upon the alternative writ and the return granted, with costs to the appelant to abide event.
All concurred.
Order appealed from reversed, and new trial of the issues upon the alternative writ and the return granted, with costs to appellant to abide event.