People ex rel. Gardenier v. Board of Supervisors

Learned, P. J. The relator relies first on the clause in article 10 of the treaty between the United States and Great Britain, August 9,1842, (Treaties U. S. 820, 8 St. at Large, 576,) as'follows: “ The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive.” The word “party,” in this clause, refers to the contracting parties to the treaty, as will appear by article 11. It is intended to relieve the government which delivers the fugitive from the duty of incurring or paying any expense. It has no reference to the question which might arise between the government which receives the fugitive, and any of its officers 753 or citizens. That clause of the treaty does not touch the question here raised. Again, the relator urges that, by the regulation of the state department, applications must come from the governor of the state, and that, in this state, applications to the governor must come from the district attorneys, and it appears that, when Cadby had been finally held in Mew Brunswick, the relator applied to the governor, and, according to the practice, after stating that in his opinion the ends of public justice required that the criminal should be brought to the state for trial at public expense, he stated that be was willing that such expense be a charge on the county of Columbia. This consent of the relator of course refers to such expense, and only to such expense, as might be incurred by the governor on the part of the state, or by the president, at his requisition. It did not refer to expenses already paid, or incurred by the relator previously. It could not refer, therefore, to any part of this bill; for the writ expressly states that these expenses were not made as agent, or the like, in making the demand, or bringing back the fugitive. These expenses were all made as a preliminary to the application to the governor. Whether they are, or are not, properly a county charge, cannot depend on the regulations of' the executive department of the state. Prior to the action of the governorupon the relator’s application, the state had incurred no expense. All that had been previously done had been done by the relator voluntarily, or in the-performance of the duties of his oflice; and the question of the liability of the-county must be decided by an examination of the powers and discretion intrusted to the district attorney. Mo light is thrown thereon by the treaty, or by the regulations of the United States or the state government relative to extradition. Indeed, as to anything done in procuring the demand from the governor, and the like, the relator is forbidden to take compensation. Pen. Code, § 51. There is no doubt that it was the duty of the relator to conduct the prosecution of the offense of Cadby. 2 Rev. St. marg. p. 383, § 89. It was one cognizable in oyer and terminer of the county of Columbia. Certainly, to conduct the prosecution means more than simply to attend the trial. A district attorney would be negligent of his duty who should omit to- take any steps to secure the attendance of witnesses, or the presence of the accused, at the trial. The investigation whether a crime has been committed, and the labor of seeing that the accused person shall not escape, may certainly, in some cases, come within the words, “conduct all prosecutions for crimes and offenses.” This follows the language used in chapter 8, Laws 1796, which authorized the appointment of assistant attorneys general for several districts of the state, to manage and conduct all suits and prosecutions for crimes and offenses. Hence, undoubtedly, we have our present district attorney. Thus, it has long been the policy of the state that prosecutions should be conducted rather by a public than by a private prosecutor. To conduct such prosecutions must require the expenditure of money. Therefore, it is provided in 2 Rev. St. marg. p. 385, § 3, that the following shall be county charges: “Subd. 2. The fees of the district attorney, and all expenses necessarily incurred by him in criminal cases arising within his county.” “Subd. 9. The moneys necessarily expended by any county officer in executing the duties of his office, ” etc. Mow, there is no question that the Cadby Case arose in the county of Columbia. Were these expenses necessarily incurred? The meaning of these words was passed upon in People v. Supervisors of New York, 32 N. Y. 473. They were said to include such expenditures as were not only needful and proper, as distinguished from such as are needless and improvident, but also reasonable, appropriate, and necessary in the discharge of the particular official duty. This same principle is affirmed in People v. Supervisors of Delaware Co., 45 N. Y. 196. It is not necessary to cite further cases. The supervisors, in refusing to audit the relator’s account, and in demurring to the alternative writ, have placed themselves on the ground that these ex 754 penses were not a county charge, even if they were necessarily expended in the Case of Cadby. In this we think they were in error. Probably it is not for us, on this appeal, to decide in detail as to the necessity of each item, as no proof on the matter is before us. From the circumstances of the case, in any such criminal matter, the district attorney, to a large extent, must be the judge of what expenditures, are needed. It would interfere with the course of justice if he had to decide, in every instance when he expended money, at the peril of having the board of supervisors decide otherwise, after the public interest in the capture and conviction of the accused had subsided. People v. Supervisors of Cortland Co., 58 Barb. 139. The defendant’s counsel, in commenting on this provision for the payment of expenses necessarily incurred, cite People v. Supervisors of Fulton Co., 14 Barb. 56. But that was a claim for the payment of services rendered by the district attorney for which no compensation was provided by law. In this case, he is not asking for payment for his services, but for reimbursement of expenses; and if these expenses were necessarily incurred, as is admitted by the demurrer, there is no justice in refusing to reimburse him. The expense of prosecuting crimes committed within the county must fall on the county, and not on an officer who has been vigilant in doing his duty. We are referred to no case by the defendant’s counsel showing that such expenses as these are not a proper county charge; and it is hardly to be supposed that, in the many cases in which fugitive criminals have been arrested in other states and countries, and ultimately brought back to this state, the expense of the discovering and arresting them has been borne by the district attorney of the county, from his own private funds, without reimbursement. When a crime has been committed, and an indictment has been found, and the accused has escaped, some one must decide whether any effort, and what effort, shall be made to capture him. We know of no other officer than the district attorney who is to decide this question. Certainly, it is not one for the board of supervisors. If there is any benefit to the public in the punishment of crime, it is important that the criminal shall not escape by fleeing to another country. We should be very unwilling to say that expenses of a district attorney, honestly made in the effort to recapture in another county a fugitive from justice, were not to be regarded as necessarily incurred. It is carefully pointed out in People v. Supervisors of Delaware Co., ut supra, at pages 199, 200, what are the respective duties of the court and of the supervisors in regard to contingent charges against the county; and it is not, on these papers, our duty to determine the amount to which the relator is entitled. But he is entitled to have his bill audited in accordance with the views we have stated. The order sustaining the demurrer must be reversed, and judgment for the relator must be granted, on the demurrer, that a peremptory mandamus issue as prayed for in the writ, with costs below and on the appeal.