People ex rel. Wetmore v. Supervisors of New York.

printing the laws. It follows, therefore, at such an election, that at least three legal ballots must be cast, and that, to make an appointment, one paper must have two, and another paper one. This is the least possible number of legal votes which can be voted to make an appointment in compliance with the provisions of this act. Now, if the relator's position be correct, there was but one legal vote cast at this election. If so, it conclusively follows that no appointment was made at that meeting of the board; and it also clearly follows that the relator or his paper was not appointed or designated. No one of two or more papers received the highest number of votes, and no paper received the next highest number of votes; consequently, no two papers could be designated for printing the laws.

In whatever aspect, therefore, we regard the relator's claim for compensation for publishing the notice in question, we are unable to discover any legal ground for enforcing it.

Without discussing the question whether a mandamus was the proper remedy to compel payment of this demand, we are of the opinion that the judgment refusing to award it was correct, and should be affirmed, with costs.

All the judges concurred, except BOCKES, J., who was absent.

Judgment affirmed, with costs.

PEOPLE ex rel. WETMORE v. SUPERVISORS OF NEW

YORK.

September, 1865.

Affirming 11 Abb. Pr. 114.

The neglect of officers charged with levying taxes, to raise money which they are required to raise for the benefit of public creditors, may amount, under peculiar circumstances, to a refusal to do so. Questions of the constitutionality of a law are never considered in this court, unless they are essential to the determination of the appeal.

People ex rel. Wetmore v. Supervisors of New York.

Under a statute requiring supervisors to raise such sum as may be found due to certain claimants, and the comptroller to pay said amount when the same shall be judicially determined, the judicial determination is not a condition precedent to the authority of the board of supervisors to raise the money. A mandamus may issue to compel them to raise it, leaving the judicial determination to be had before payment.

The People, on the relation of William C. Wetmore and others, commissioners of records for the city and county of New York, obtained a mandamus against the board of supervisors of New York county, to compel them to raise by tax the sum of seventy-two thousand and thirty-four dollars and twenty-four cents, for which sum requisitions had been made by the commissioners.

By the act of April 13, 1855, the relators were appointed commissioners to perform certain acts in regard to the records in the offices of the clerk, register, and surrogate of the city and county of New York. Section 2 of the act provided: "The necessary expenses incurred by them shall be paid by the county treasurer, upon the certificate of said commissioners, and the supervisors of said city and county are hereby authorized to raise by tax the amount required to defray the same."

Under this act the commissioners entered on their duties, and incurred large expenses.

On April 16, 1860, the annual tax bill for the county of New York was passed, section 6 of which (Z. 1860, p. 1024, c. 509) was as follows: "and the said board of supervisors are hereby empowered to cause to be raised and collected in manner aforesaid, the further sum not exceeding $80,000, to meet and pay whatever sum, up to that amount, as may be found due to the contractors with the commissioners of records of the city and county of New York. The comptroller is authorized to pay said amount, when the same shall be judicially determined."

On May 22, 1860, the commissioners made the usual requisition on the supervisors to raise by tax the sum of seventytwo thousand and thirty-four dollars and twenty-six cents.

The supervisors having failed to raise the money, on July 26, 1860, an order was obtained requiring them to show cause,

People ex rel. Wetmore v. Supervisors of New York.

why they should not raise by tax eighty thousand dollars. On the return of the order affidavits were read on the part of the supervisors, to show,-1. That when the requisitions were made on the supervisors by the commissioners, the matter was referred to a committee, in the usual course of business; that the committee subsequently made a report denying the prayer of the commissioners, upon which the board of supervisors recommitted the matter to the same committee, to make a new report, and the committee had not yet reported. It also appeared by the affidavit that a meeting of the supervisors was held on August 7, and adjourned until the 28th. The supervisors therefore denied that they had refused to act according to the requisitions of the commissioners. The affidavits also set up.-2. That an alternative mandamus had been obtained against them at the suit of the contractors, and that this suit was still pending. [Reported in 10 Abb. Pr. 233.] 3. That the act of 1855 was unconstitutional. 4. That there was no appropriation in the treasury of the county sufficient to cover the alleged expenses at the time they were incurred. 5. That there had been no judicial determination of the amount due to the persons mentioned in the affidavits of the relators.

The supreme court ordered a peremptory mandamus, holding that it was the duty of the supervisors to raise by tax the amount due for work done under the contracts, assuming the contracts to be legal, the act of 1855 to be constitutional, and the contracts to have been authorized by it; but that the comptroller would not be authorized to pay the money when so raised until the judicial determination referred to in the act of 1860 was had. This judgment was affirmed by the court at general term, which held that the intent of the legislature by the act of 1860 was to provide a fund for the payment of the expenses incurred by the commissioners; that the act was imperative and the defendants had no discretion as to whether they would exercise the authority conferred and levy the tax, and the only discretion left to them was as to the amount necessary to pay the claims intended to be provided for. That their acts had amounted to a refusal to raise the tax as re

People ex rel. Wetmore v. Supervisors of New York.

quired. That the constitutionality of the act of 1855, or the validity of the acts of the commissioners under it, were not before the court. Reported in 11 Abb. Pr. 114.

From the judgment the defendants appealed to this court.

A. R. Lawrence, Jr., for defendants, appellants.

John W. Edmonds, for plaintiffs, respondents.

BY THE COURT.-PORTER, J.-It is quite evident from the inaction and delay of the board of supervisors, as well as from the grounds on which the application for a mandamus was resisted, that the board did not recognize itз obligation to raise the moneys in question under the act of 1860. There was, it

is true, no formal refusal; but we think the court below was right in holding that, under the circumstances disclosed in the affidavits, the neglect of the board was equivalent to a refusal to comply with the requisition. Reg. v. St. Margaret, 8 Ad. & E. S89, 904; People v. Supervisors of Richmond, 20 N. Y. 252,

253.

The question whether the act of 1855 was constitutional is not necessarily involved; and such questions are never considered in this court unless they are essential to the determination of the appeal. Frees v. Ford, 6 N. Y. 176. The authority which the supervisors were called upon to exercise was conferred by a subsequent law, the validity of which is entirely clear. L. 1860, p. 1024, c. 509, § 6; Thomas v. Leland, 24 Wend. 65; Townof Guilford v. Supervisors of Chenango, 13 N. Y. 143; Brewster v. City of Syracuse, 19 Id. 116. The board was empowered, by the act of 1860, to raise and collect by tax, a fund, not exceeding eighty thousand dollars, and sufficient to pay such amount as might be found due to the contractors with the commissioners of records. It was neither charged with the duty nor clothed with the power of making payment. The act left it with the courts to determine whether the claimants were entitled to the money so raised, and the comptroller was not authorized to pay it over until the rights of the contractors should be judicially ascertained.

The record discloses the fact that, at the time of the passage

People ex rel. Wetmore v. Supervisors of New York.

of the act of 1860, a litigation was pending between the contractors and the appellants, in which an issue was made as to the validity of the law appointing the commissioners; and the design of the legislature evidently was, to direct the raising of a fund sufficient to meet the demands of the claimants, for services rendered by them for the public benefit and on the pledge of the public faith, and the performance of which was certified by the proper officers in conformity with the provi sions of the act of 1855. It is equally plain that the legisla ture did not intend to direct the payment of the fund from the treasury, until the rights of the parties beneficially interested should be fixed by legal adjudication.

It is insisted that the judicial determination, which, by the terms of the act, was to precede the application of the fund by the comptroller, was a condition precedent to the authority of the board to raise it. Such a construction would be subversive of the plain purpose of the provision. If the precise amount to be paid was to be fixed by judgment before the action of the supervisors, there would have been no propriety in the limitation of the levy to eighty thousand dollars. The law required them to raise, within this limit, so much as should be sufficient to meet the amount found due to the contractor; and this was readily ascertainable by the certificates of the commissioners, which the statute had made presumptive evidence of the fact. L. 1855, p. 763, c. 407, § 2. In respect, however, to payments by the comptroller from the fund in question to the contractors, the legislature superadded the further condition that the amounts should be judicially ascertained. The design of the law-makers is quite apparent, and though the language in which the intent is expressed is loose and inartificial, we are bound to give full and fair effect to the substance of the provision.

The order of the general term should be affirmed.

All the judges concurred, except BROWN, J., who was ab

sent.

Order affirmed, with costs.