SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. both necessary and proper parties. A good cause of action is stated against each, and it is but a single cause of action to establish plaintiff's interest in the fund.

The judgment appealed from should be affirmed; but, as the complaint is drawn singularly inartificially and possibly misleading, the affirmance should be without costs.

All concurred.

Interlocutory judgment affirmed, without costs.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ADOLPH L. KING, Respondent.

The presentation of an excessive bill to a board of supervisors is not a crime — printing election ballots.

Where a claim presented to a board of supervisors for the printing of election ballots is unliquidated, has not been contracted for at any specific price, and is not the subject of any statutory provision, the presentation to the board of a bill containing a statement of excessive or exorbitant value, unaccompanied by any false statement of collateral circumstances, does not constitute an indictable offense.

Semble, that the presentation of a bill which concealed the fact that a special contract had been made with county authorities at a lower price, or purposely computed falsely the gross value of its items, might amount to an indictable fraud.

APPEAL by the plaintiff, The People of the State of New York, from a judgment of the County Court of Richmond county in favor of the defendant, rendered on the 25th day of January, 1897, upon the decision of the court sustaining the defendant's demurrer to an indictment.

George M. Pinney, Jr., District Attorney, for the appellant.

Sidney F. Rawson, for the respondent.

CULLEN, J.:

The defendant was indicted by a grand jury of Richmond county for having presented to the board of supervisors of that county a

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

false and fraudulent claim and bill for printing election ballots, as follows:

"To printing 128,100 Voting Ballots for General Ticket, Excise and Canal.

It is conceded that the defendant printed the ballots charged for and that no special price was contracted for. The contract, therefore, was such as the law implies that the defendant should be paid the fair and reasonable value of his material and services, and so the indictment states. The indictment charges that the bill and claim was false and fraudulent in this respect alone; that the sum demanded was more than $3,000 in excess of the fair and reasonable value; that the defendant knew such fact and presented the excessive claim for the purpose of defrauding the county. The question presented, therefore, is whether fraud can be predicated of a false statement as to value. We think the law is settled in this State to the contrary. In Ellis v. Andrews (56 N. Y. 83) it was held that: "A false statement as to the value of property, made by a vendor for the purpose of obtaining a higher price than he knows the property is worth, will not sustain an action for fraud by a purchaser who contracted relying upon the statement." This rule is recognized in Fairchild v. McMahon (139 N. Y. 290) as being the law. false representation as to value cannot constitute fraud, so as to form the basis of a civil action, much less would it seem sufficient as the ground for a criminal prosecution. We think the demurrer was, therefore, properly sustained.

If a

We do not intend by this decision to at all concede the respondent's contention that the amount of a claim presented against a county can, under no circumstances, constitute indictable fraud. If the person presenting the claim had made some special contract with the county authorities for the services claimed for at a less price, and, concealing that fact, should present a claim for a higher sum, it might well be held fraudulent. So, also, if the computations made of the gross value of many items were purposely false and made for the purpose of deceit and obtaining an excessive price, this would undoubtedly constitute fraud. Other instances may be suggested.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

All we decide here is that, where the claim is unliquidated and not contracted for at any specified price, or the subject of any statutory provision, a statement of excessive or exorbitant value, unaccompanied by any false statement of collateral circumstances, does not constitute an indictable offense.

The judgment appealed from should be affirmed.

All concurred.

Judgment affirmed.

In the Matter of the Application of CHARLES GOEDEL, JOHN J. MOOG and CHARLES E. BRYANT, Appellants, for a Writ of Mandamus, v. GEORGE W. PALMER, as Comptroller of the City of Brooklyn, Respondent. (Three Cases.)

Armorers and janitors of the National Guard

they are not subject to civil service

it need not be covered by the

rules their compensation is a county charge annual legislative appropriation courts may use journals and debates of the Constitutional Convention in interpreting the Constitution.

Armorers and janitors of armories of the National Guard belong to the military service of the State and are not subject to the civil service regulations. Prior to the adoption of the Constitution which went into effect January 1, 1895, their compensation was a county charge, and it still remains such. The provisions of section 179 of the Military Code, as amended by chapter 853 of the Laws of 1896, declaring that their compensation "shall be a county charge upon the county in which such armory or arsenal is situated, and shall be levied, collected and paid in the same manner as other county charges are levied, collected and paid," does not conflict with the final clause of section 3 of article XI of said Constitution, which section, after providing for the organization of the militia, closes with the statement, "and it shall be the duty of the Legislature, at each session, to make sufficient appropriations for the maintenance thereof."

The object of section 3 of article XI was to require the maintenance of the National Guard and to oblige the Legislature to make sufficient appropriations for its maintenance, but there was no intention to forbid any moneys being applied to the support of the militia other than those annually appropriated by the Legislature for that purpose.

Courts may consult the journals and debates of the Constitutional Convention which formulated a given article or section of the Constitution, in order to throw light upon its correct interpretation or application.

APPEAL by the relators from three orders of the Supreme Court, made at the Kings County Special Term and entered in the office of

App. Div.]

SECOND DEPARtment, March TERM, 1897.

the clerk of the county of Kings on the 18th day of February, 1897, denying their respective applications for peremptory writs of mandamus directing the respondent to pay them respectively as follows: To the said Charles Goedel the sum of $124, being the amount of his wages for the month of January, 1897, as janitor of the armory of Troop C of the National Guard in the city of Brooklyn; to the said John J. Moog the sum of $124, being the amount of his wages for the month of January, 1897, as armorer of the armory of the Third battery of the National Guard in the city of Brooklyn, and to the said Charles E. Bryant the sum of $124, being the amount of his wages for the month of January, 1897, as armorer of the armory of the Twenty-third regiment of the National Guard in the city of Brooklyn.

Edward M. Grout, for the appellants.

Alfred E. Mudge, for the respondent.

WILLARD BARTLETT, J.:

The Special Term has held, correctly, as I think, that armorers and the janitors of armories of the National Guard belong to the military service of the State and are not subject to the civil service regulations. This conclusion was not questioned upon the oral argument and is not questioned in the brief submitted in behalf of the respondent. The sole ground upon which relief was refused to the relators in the court below was that, under the Constitution of the State, as revised and amended in 1894, it is no longer within the power of the Legislature to make the wages of such armorers and janitors payable as a county charge.

I am unable to concur in this view as to the effect of the new Constitution.

By section 179 of the Military Code, as amended in 1896, it is declared that the compensation of such armorers and janitors "shall be a county charge upon the county in which such armory or arsenal is situated, and shall be levied, collected and paid in the same manner as other county charges are levied, collected and paid." (Laws of 1896, chap. 853, vol. 1, p. 774.) This clearly imposes the duty of payment upon the officer by whom county

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. charges are payable, unless there be some provision in the Constitution, express or implied, which nullifies the declaration and direction of the statute.

Such a provision is asserted to exist in the final clause of section 3 of article XI of the Constitution.

The entire section reads as follows: "The militia shall be organized into such land and naval, and active and reserve forces, as the Legislature may deem proper, provided, however, that there shall be maintained at all times a force of not less than ten thousand enlisted men, fully uniformed, armed, equipped, disciplined and ready for active service. And it shall be the duty of the Legislature at each session to make sufficient appropriations for the maintenance thereof."

The constitutional requirement that the Legislature shall at each session make sufficient appropriations for the maintenance of the National Guard has been construed by the Special Term as a prohibition against legislative action providing for the expenses of the State militia, even to a limited extent, in any other way than by payments out of the State treasury.

This construction makes the clause a limitation upon the power which the Legislature clearly possessed and exercised without question prior to the adoption of the Constitution of 1894. Before that time there could be no doubt of the validity of legislation which imposed particular expenses in the maintenance of the National Guard upon particular localities, although the general expenses of supporting the organization were borne by the State at large. In adopting section 3 of article XI in its present form, did the People intend to deprive the Legislature of this power, or was it their intention only to make sure that the militia should always be adequately provided for by means of appropriations at each session, which, in addition to the support derived by means of county charges, should suffice to accomplish the desired result?

It seems quite clear to my mind that there was no idea of lessening the authority of the Legislature, and that the command of the Constitution to make sufficient appropriations at each session for the maintenance of the militia should not be interpreted as excluding other additional legislative methods of providing money for the support of the National Guard.