Citation Numbers: 15 How. Pr. 152
Judges: Strong
Filed Date: 7/15/1857
Status: Precedential
Modified Date: 11/8/2024
On the 11th of April, 1855, the common council of the city of Brooklyn adopted the following resolution :
“ Resolved, That the sum of 500 dollars per year, commencing on the first day of January last, be appropriated to, the commissioner of repairs and supplies for the payment of the expenses of keeping a horse and wagon, which is required to enable him to discharge his duties, and the comptroller is hereby directed to pay the same in monthly payments upon the certificate of the auditor.”
The relator was elected commissioner of repairs and supplies, of that city, in November, 1856, for a term commencing on the first day of January, 1857. On the last-mentioned day, he entered upon, and has since continued in the discharge of the duties of the office. He has, during all that time, kept a horse and wagon, which he has devoted to the performance of his official duty. On the-2d of March, 1857, he presented to the auditor for his official certificate, the bills for the preceding months of January and February, each for the one twelfth part of 500 dollars, appropriated to the commissioner for the payment of the expenses of keeping a horse and wagon in the performance of his duties.
The auditor refused to certify the bills, on the alleged ground that the resolution awarded to the commissioner only his actual expenses in keeping a horse and wagon, and that the bills presented contained no statement of such expenses, nor any evidence that the sums claimed had been expended. An alternative mandamus having been issued, and a return made showing these facts, the relator applied at a special term, held in the county of Kings, for a peremptory mandamus requiring the defendant to certify his bills. The motion for a peremptory mandamus was denied, and the relator thereupon appealed to this court at the general term.
The sole question for our consideration is, whether the rela
The learned judge who decided this case at the special term, thinks that the requisition that the payment must be made upon the certificate of the auditor, implies that he is to pass upon the items or particulars of an account which must be of actual expenses. He refers to the sections of the ordinance relative to the duties of the city officers, which requires the auditor to make entries in Ms books, showing the date and items of each claim, and to examine such items. As the duty was imposed by an ordinance of the common council, it was competent for the same body to modify or dispense with it in any particular instance. If; therefore, the resolution in question had required any official act, essentially variant from the general ordinance, that would not have rendered such resolution nugatory. But it did not require any essential change from the ordinary duties of the auditor in this respect. He can still make the requisite entry in Ms official books, show ing the date and only item in each monthly account, and he can and should examine the item to see that it corresponds with the allowance specified in the resolution. He can also, I think, reqrnre evidence that the commissioner has kept a horse and wagon, and employed it in the public service during the time for which the charge is made. And then he will have done all which the city ordinances require of him, antecedently to his signing the usual certificate. It cannot be supposed that the common council ever designed to authorize this, its inferior officer, to vary the rate of compensation fixed by its own resolution. If the rate should not be fixed directly by the common council, it might be, and frequently (if not usually) is, by a contract made upon an advertisement for bidders or proposals. In such cases contractors are often paid (to use a familiar phrase) by the job. When their claims, in such cases, are presented to the auditor, all that he has to do is to ascertain that the work has been properly performed. He could not be expected to, nor could he be legally required to inquire and determine whether the rate of compensation
The requisite facts to establish these accounts were admitted. The auditor placed his refusal to certify the bills on untenable grounds, and claimed a discretionary power when he had none. It is, therefore, a proper case for a mandamus.
The judgment at the special term must be reversed, and there must be a peremptory mandamus, but without costs.