People ex rel. Johnson v. Martin , 43 How. Pr. 52 ( 1872 )

Lamont, J.

The plaintiffs’ counsel relies upon the act of 1866, (chap. 534,) as furnishing authority for this proceeding by mandamus, to compel the defendant to meet and account with the justices of the peace and town clerk of Olean, for the disbursement of moneys received by him as supervisor. This is the specific duty which the alternative writ .commands the defendant to do, or to show cause to the contrary.

It was the duty of the defendant to have had an accounting with these officers on the Tuesday preceding the annual town meeting held in February 1870. Such is the command of the statute, for a willful neglect to perform which, the defendant would be liable to indictment for a misdemeanor. (2 R. S. 696, § 38.)

Such accounting consists, not in paying over any money, or delivering any property, to the auditing board, or to other officers; for the supervisor’s term, at that time, is not ended; but he is to show the condition of the town funds and property in his hands, the disbursement of moneys received, and the state of his official accounts. The board of audit place in the supervisor’s book a certificate showing the state of the accounts at that time. The audited accounts are to be filed with the town clerk, for the inspection of any one of the inhabitants of the town, and to be read at the town meeting, if required on that occasion. (1 R. S. 355, §§48, 49.). Ho doubt tí at duty of the supervisor may be enforced' by mandamus, while he still continues in office, unless some other adequate remedy has been provided by the law, for such delinquency. The writ of mandamus was originally devised, and is still resorted to, to supply a remedy in cases of this sort, where the law proves otherwise defective and inefficient; and. this is especially the case where public officers neglect to perform a clearly defined public duty.

It is also á general, if not universal, rule that the writ of mandamus does not lie where other adequate legal remedies exist. (The People v. Supervisors of Chenango, 11 N. Y. 573.)

The office of the defendant as supervisor expired in February 1870. This writ was not issued until May 1871. The defendant has now, (March 1872,) been out of office above two years.

The peremptory writ, when allowed, must follow the command of the alternative one ; and in the present case, that command is that the defendant meet the justices and town clerk and account with them on the 20th day of May, 1.871, a time already past. Of course this is impossible.' The court, however, might, and would, if necessary, allow an amendment in this respect, in both writs. (Code, § 471.)

The justices and town clerk form a special board of audit, to examine the supervisor’s accounts, and the statute has fixed the day of their meeting for this purpose on Tuesday next preceding the annual town meeting. (1 R. S. 349, § 4.) In TTie People v. Auditors of Westford, (53 Barb. 555,) the court was of opinion that the board of town auditors could not lawfully meet and perform the duties of such board on any other day than the statute day; they not being authorized, like boards of supervisors, to hold special meetings. If, then, a mandamus could be awarded, in this case, the accounting, by the defendant, could not be had, before this board, until February, 1873, and then the defendant, by virtue of this writ, could be required only to show how his accounts as supervisor stood in February 1870, without paying over a penny to any body. This, under the circumstances, would seem to be but a very defective remedy.

How the act of 1866 supplies to the town of Olean a complete and effectual remedy, embracing not only all that could be obtained by mandamus, but a recovery of any money or-property of the town which the defaulting supervisor has not duly accounted for. (Laws of 1866, ch. 534.) The act gives to the town, in its corporate name, the character of plaintiff, in an action in the Supreme Court, to be instituted and conducted by the same officers who can force the board to audit the supervisor’s accounts. In such action, these officers, in the name of the town, may compel the defendant to render the very account in question, and moreover may, at the same time, obtain judgment for the money and property coming to the supervisor’s hands for which he has failed to account.

Whatever, therefore, might have been the propriety of a mandamus in this case, independently of the act of 1866, certain it is that by this statute a completer and better remedy has been given to the town than could be reached by a mandamus; and if so, then clearly the resort to a mandamus should be denied.

It is claimed, however, by the plaintiff’s counsel, that the writ of mandamus is one of the remedies given by the statute of 1866. It is not given by name, and I think it is excluded by the very terms of the statute. The act reads as follows: “ If any supervisor shall neglect to account, or shall render a false account, or shall convert to his own use any money or securities which may come to his hands by virtue of his office, proceedings may be commenced against him, in the name of the town of which he is supervisor, in the Supreme Court, by action or otherwise, by the justices of the peace and town clerk of said town, to compel him to render such account, or to recover" any money or property of the town which he has not duly accounted for.”

It is clear that under this statute, whatever action or proceeding is instituted must be in the name of the town. This language cannot embrace the writ of mandamus, which must, in all cases, run in' the name of the people.

Mandamus is a writ issuing in the name of the sovereign. (Bouvier's Law Dic., word Mandamus.) • It is a command issuing in the king’s name, &c. (3 Black. Com. ,110.) In a recent case in the Court of Appeals, it is said: “Inasmuch as the people themselves are the plaintiffs, in a proceeding by mandamus, it is not of vital importance who the relator should be, so long as he does not officiously interfere in a matter with which he has no concern. The office which a relator performs is usually the' initiating a proceeding in the name of the people, and for the general benefit,” &c. (People v. Halsey, 37 N. Y. 348.)

I conclude, therefore, that a mandamus, if otherwise appropriate, is not authorized by the law in question. But if the language of this act had been comprehensive enough to include such a proceeding, the writ would still be denied in the present instance, because of the better and fuller remedy given byother legal proceedings,'according to the established rule that the writ of mandamus shall not be allowed when a complete remedy is given by action.

A mandamus lies only when other adequate legal remedies fail, (Fish v. Weatherwax, 2 John. Cas. 217—1, and § 3 of the elaborate note to that ease f) and not always then. In the array of judicial -powers, the writ of mandamus is regarded as an auxiliary, to be called into action when the regular forces prove unequal to the emergency, and supplements some defects in the administration of justice. Again, the official bond of the supervisor, with sureties, will, in most if not all cases, afford the town sufficient means of indemnity against a delinquent officer. The bond is conditioned for the faithful discharge of the official duties of the supervisor, and well and truly to keep and pay 'over, and account for, all moneys belonging to his town and coming into his hands as supervisor. (Laws of 1866, eh. 534, § 2.) This seems to cover the entire field of official duty. The first clause of the condition makes the supervisor amenable for misappropriation, or embezzlement, or falsely accounting, or failing to account; or for refusing to pay over moneys as required by law. (Allegany County v. Van Campen, 3 Wend. 48.)

As to the matters stated in the return, it is not perceived how a change in the town clerkship could aid the defendant. The justices and town clerk, whoever they may happen to be, constitute the proper auditing board to examine supervisors’ accounts. I think also that a careful consideration, of the question would be called for, if a decision on the point was necessary in this case, before conceding that the expiration of the defendant’s term of office' would shield him against a rendering of his account as he ought to have done, before his term expired. It has been held that a mandamus lies to compel a town clerk to deliver the records to his successor.; to a removed clerk of a county court to deliver up the records and seal of the court; to compel overseers to deliver up parish books to their successors; to compel a removed clerk to deliver up books of a public corporate company; to overseers and guardians to pass their accounts. (See note to Fish v. Weatherwax, supra, citing the cases.)

This proceeding to compel .delivery of records, books and papers to an officer’s successors, would fail in this State, for the reason that our statute has given a more summary remedy, which applies to supervisors. (1 R. S. 358, §§ 5 to 9.) But the cases show that ex-officers may be compelled by mandamus to perform some, duties pertaining to their office after the expiration of their official term. It is not necsssary, in the ■ present case, to determine whether the return is sufficient; for on this demurrer, the defendant may go back of his return and attack the alternative writ. If that is bad in subtance, the plaintiff must fail. (People v. Supervisors of Fulton, 14 Barb. 52. People v. Baker, 35 id. 105. People v. Ransom, 2 N. Y. 490.) The writ is substantially defective when better remedies are given, by action.

[Cattaraugus Special Term, February 5, 1872.

Lamont, Justice.]

The peremptory writ must be denied, for the reasons stated, and the alternative writ dismissed.

As costs in this case are in- the discretion of the court,-1 think none should be allowed.