People v. Tremain

Emott, J. The fourteenth section of the seventeenth title of part third, chapter eight, of the revised statutes, directs that whenever costs -are adjudged against the people of the state in any civil suit or proceeding instituted by any officer duly authorized for that purpose, it shall be the duty of the comptroller to draw on the treasurer for the amount thereof, upon the production of an authenticated copy of the judgment record, etc., and upon a certificate of the attorney general that such suit or proceeding was duly instituted as by law required. This is a mandamus to compel the attorney general to certify, pursuant to this section, that certain suits for penalties, un [97] der the Metropolitan Police Law, were duly instituted. In the return to the alternative writ, the defendant states that no appropriation has been made by the legislature for the payment of these costs, and this allegation is admitted by the relator by the demurrer. The present constitution of the state provides (Art. 7, § 8) that no moneys shall ever be paid out of the treasury of the state, or any of its funds, except in pursuance of an appropriation by law. It will be seen, therefore, that upon the facts presented, the payment of the costs in question cannot be made, nor compelled, from the treasury. This presents a question which I think will dispose of the case, without adverting to any of the other points which were argued. It will be observed that the statute does not require the defendant to make the certificate in question, but it commands the comptroller to draw his warrant upon the treasurer, on the production of the proper evidence of the amount of these costs, accompanied by the attorney general’s certificate. The learned judge, at special term, held that this provision, that an act of a public nature should be performed by the comptroller upon the performance of another act by the attorney general, was equivalent to a direction that the latter act should be done by this officer. Admitting this to be so, and that certifying under this statute is an act properly controllable by mandamus, both of which are propositions which I mean to pass without examination, as they are not .material in the view I take of the case; admitting, I say, both these propositions, it is obvious to us that the duty of the attorney general can only be commensurate with that of the comptroller. When a case is presented, in which, with the certificate before him, it would be the duty of the latter officer to draw his warrant, it would be the duty of the former to certify. But when the comptroller ought not and could not draw his warrant, with the certificate, the attorney general ought not to make the certificate. Are we to be called upon to compel one of these officers to make a certificate which the statute says shall be sufficient to impose upon the other the duty of drawing his warrant on the [98] treasury, and which is intended for no other purpose; and yet, after this is done, at the next step deny our assistance and refuse to direct the warrant ? "We are thus to refuse to compel obedience to the final and effectual mandate of the statute, after having compelled a compliance" with all its preliminary requirements. Or to put the case otherwise, why should we compel a compliance with these preliminaries when we see that we cannot command the act in which they are to result ? In the case of The People ex rel. Woodworth v. Burrows, (27 Barb. 89,) this court, sitting in the third district, held that where the treasurer could not pay a warrant, the comptroller would not be commanded to make it. The ground upon which a mandamus against the comptroller was refused, in that case, was precisely that which exists here, namely, that there was no appropriation, and therefore the treasurer could not "pay the warrant if made. I feel no dissatisfaction with that decision; on the contrary, it is founded upon a well settled rule, which is as decisive of this case as it was of that. If we refuse to compel the comptroller to draw the -warrant because the treasurer ought not to pay it, it is equally clear that we must refuse to compel the attorney general to certify because the comptroller ought not to draw. It is plain that the defense is as available by one of these officers as the other. The attorney general may as well set up .the impropriety of the comptroller making the warrant as a reason why he Should not certify, as the comptroller allege that the treasurer cannot pay, as a reason why he should not sign the warrant. The inability of the treasurer to pay this bill of costs, or rather the constitutional inhibition upon his paying it, is a sufficient reason why this mandamus should be denied. When the end cannot be accomplished, none of the machinery should be set in motion. The object of all the provisions of the statute is to regulate and provide for the payment of such claims out of the public treasury, in the manner prescribed by law, and none of the proceedings which the statute contemplates is to be used for any other purpose than as one step in [99] an orderly procedure to that end. When that object is impossible of attainment, we should not compel a single step towards it. The court'will not grant a mandamus where it would be fruitless and ineffectual to relieve the relator. (Tapping on Mandamus, 67. The People v. Supervisors of Greene Co., 12 Barb. 217. The Same v. Burrows, qua supra.) And by this is meant that the aid of the court will be refused when its writ will not finally avail the party, or protect his rights, when he has no right .to the ultimate relief to which his proceedings tend, or cannot redress his grievance in the proceeding which he seeks to institute. Many authorities might be cited to this point, but it would be a waste of time to search for them. We do not sit to decide abstract questions, or to promulgate our opinions in authoritative form for some future, it may be, indirect use or reference. Our duty is to administer the remedies which the law and the constitution afford to suitors, according to the rules which the law and the constitution prescribe. [Kings General, Term, February 14, 1859. S. B. Strong, Lott, Emott and Brown, Justices.] It is said that we may presume that at some future time an appropriation will be made by the legislature for the costs in these and similar actions, and that the forms and proceedings which we are asked to compel the public officers to go through with, although fruitless now, may become effectual then. The answer is that we are to decide this case by the facts as they exist now, and as they are placed before us. If the relator fails on these, he cannot sustain himself by conjectures of what is possible or probable in the future. A peremptory mandamus is denied, and the defendant must have judgment with costs. Lott, J. and Brown, J. concurred. S. B. Strong, J. dissented. Peremptory mandamus denied.