Boyce v. Board of Supervisors

By the Court, T. R. Strong, J. Assuming, without deciding, that no discretion is vested in the board of supervisors in relation to the account of the plaintiff, and that a clear legal duty rests upon them to cause to be levied, collected and paid, the whole amount of the account as a county charge, which they refuse to perform, I am satisfied that the law does not allowr to the plaintiff a remedy by action ; and that his only remedy is by an application to the court, for a mandamus, to compel the supervisors to perform that duty. The board of supervisors are not a corporation; and as such a board, and apart from the [296] county, are not liable to a suit; they can only be sued as representing the county, under the statute which prescribes that in suits against a county the county shall be sued “ in the name of the board of supervisor's thereof.” To warrant a suit against them as representing the county, there must be some duty of the county, and the case must be such that an action founded upon that duty is the appropriate remedy. When they are made defendants in form in such a case, the county are the real defendants. The difficulty in maintaining an action in the present case is, that the duty upon which it must' rest is a duty, not of the county, but of the board of supervisors. The statute (Laws of 1850, p. 692, § 7) makes the expenses therein mentioned a county charge, and directs that they “ shall be levied, collected and paid, under the direction of the said board of supervisors of the respective counties, in the same manner as other county charges are levied, collected and paid.” The cause of action is the neglect or refusal of the supervisors to perform this duty. By the revised statutes (Vol. 1, p. 364) each county has limited corporate powers, and among others power “ to sue and be- sued, in the manner prescribed by law but there does not appear to be any good reason why it should be subjected to a suit for this failure of duty by the supervisors, and there is no provision of statute imposing upon it that liability. If an action should be permitted, no execution could be issued on the judgment. (2 R. S. 475, § 107.) And some further remedy would be necessary if the supervisors should refuse to provide for its payment. (Id. 474, § 102 to 104.) The remedy by mandamus, operating upon the supervisors as officers of the county, is a full, efficient, and, as I think, the only remedy of the plaintiff. In The People v. The Supervisors of Columbia, (10 Wend. 363,) it was held that a mandamus against the supervisors was the proper remedy when a duty rested upon those officers to cause to be levied, and collected, a certain sum, made a county charge, in‘like manner as other charges upon the county were required to be levied and collected; and that an action against the county would not lie. Chief Justice Savage, in delivering [297] the opinion of the court, says, “ If an action lies in this case, then a mandamus should be refused. I think an action will not lie. This statute directs the supervisors to levy and collect the amount of the deficiency; it is a duty imposed upon those officers, which should be performed by them, but for their neglect the county in its corporate capacity should not be punished; nor does any liability attach to the county to pay the money in any way other than that pointed out in the statute.” (See Brady v. The Supervisors of New York, 2 Sandf. S. C. R. 460.) The principle that a mandamus is the proper remedy in such cases, is recognized and applied in numerous authorities. (Bright v. Supervisors of Chenango, 18 John. 242. Johnston v. Supervisors of Herkimer, 19 id. 272. The People v. Supervisors of Cayuga, 2 Cowen, 580. The People v. Supervisors of St. Lawrence, 5 id.292. The People v. Supervisors of Dutchess, 9 Wend. 508. The People v. Supervisors of Ulster, 3 Barb. S. C. R. 332. The People v. Edmonds, 15 id. 540.) All these and other similar authorities impliedly hold that an action will not lie; as the principle is clear and undisputed that a mandamus will not be issued when there is an adequate remedy by action. In The People v. The Supervisors of Fulton, (14 Barb. 52,) the doctrine is advanced, although it was not necessary to the decision of the case, in the view taken by the court of another point, that if the board of supervisors “ has neglected or refused to perform a legal duty enjoined upon them, and which they were bound to discharge, an action will lie against themand therefore a mandamus cannot be granted. These cases are referred to in support of the doctrine: Ex parte Lynch, (2 Hill, 45.) The People v. The Mayor of New York, (25 Wend. 680.) Ex parte The Fireman’s Ins. Co., (6 Hill, 243.) In the first case a mandamus against officers acting as supervisors of New York was refused, on the ground that the relator had an ample remedy by action against The Corporation of New York; inasmuch as the statute allowed him a certain sum as his salary, to be paid by the common council of the city, out of the city treasury. The next case is of a like character. And [298] in the remaining case a mandamus against the Commercial Bank of Albany, a private corporation, was refused because there was an adequate remedy by action. None of these authorities support the doctrine that an action will lie against a board of supervisors, or a county, in cases like the present; and I do not-find any adjudication sustaining it. (See Brady v. The Supervisors of New York, 2 Sandf. 474.) [Cayuga General Term, June 4, 1855. There must be judgment in favor of the defendants. Selden, Johnson and T. R. Strong, Justices,]