People ex rel. Dinsmore v. Gilroy

FOLLETT, J. It must be borne in mind that the relator applied for a peremptory writ, and did not offer to take an alternative one. The facts upon which the rights of the litigants must be determined are not disputed. It is agreed that S. P. Dinsmore & Co. published 27,726 lines of official matter upon the order of the mayor and comptroller, for which the firm has been paid $6,931.33, at the rate of 25 cents a line, and gave a release of all demands against the city. The city admits that the firm published 110,721 lines upon the order of its mayor alone, for which the city has refused to pay. The firm brought an action against the city to recover for this work, and was defeated because the comptroller did not join with the mayor in ordering the work. Under this state of facts the statute quoted was passed, and the principal question involved in this appeal is whether the statute is mandatory or permissive. In case the language of a statute authorizes a public body or a public officer to do an act, using the word “may,” and the act authorized relates to the interests of the public, or to the rights of persons, or if the act authorized be to promote justice, the word “may” is generally considered to mean “shall,,r and the statute is deemed mandatory, and not permissive. People v. Supervisors of Otsego Co., 51 N. Y. 401; People v. Supervisors of Livingston Co., 68 N. Y. 114; Sedg. St. Law (2d Ed.) 375. This is a well-settled rule of construction, and the cases wherein it is laid down are referred to in the above authorities, and it is unnecessary to cite them again. But when the rule is invoked in aid of a personal right the right must be an existing legal one, and not one which the board or officer is by the statute authorized to create. Gilmore v. City of Utica, 121 N. Y. 561, 24 N. E. 1009; Buffalo & B. P. Road Co. v. Commissioners of Highways, 10 How. Pr. 239; Turnpike Road Co. v. Miller, 5 Johns. Ch. 101; Sedg. St. Law (2d Ed.) 375 et seq.; Potter’s Dwar. St. 220; and End. Interp. St. § 313. In Gilmore v. City of Utica, supra, it is said that, before this rule of construction will be applied in aid of a public interest or of a private right, “there must be a definite, plain public interest, or a vested, well-defined private right, and then it will very justly be supposed that the legislature meant to subserve or protect the public interest, or to give or secure the private right.” The limitation that the statute must relate to an p-gj sting private right, before “may” shall he construed to mean “shall,” is as firmly settled as the general rule first above stated. The statute under consideration does not relate to a public interest, and it is conceded by the relator that prior to the statute (chapter 568, Laws 1888) he had no existing legal right to recover for the services rendered. It had been so held by the supreme court in an action 780 brought against the city, which judgment was not appealed from, and is conclusive. Should “may” be construed “shall” on the ground that the statute was passed to do justice to the relator? This inquiry brings us to the question whether the statute recognizes the justice of. the claim, for unless it does, expressly or by fair implication, the act will not be held to be mandatory. Clearly, if the justice of the claim is not declared, but left to be determined, the statute must be held to be a permissive one, and a peremptory writ of mandamus is not an ■appropriate remedy. This statute does not expressly declare the claim to be a just one, or direct that it shall be paid, nor can it be implied from the language of the act that the legislature passed the statute because it deemed the justice of the claim established. The language is, “The board of estimate and apportionment of the city and county of New York is hereby authorized to examine into the facts relating to the claim.” What facts are they to examine into? The learned counsel for the relator says that the board had authority to determine simply what were the customary rates of the Stockholder for such work. In other words, that it was intended by the statute to require the city to pay the customary rates for advertising the notices and proceedings “reported” by the special examination of the department of finance to have been published in the Stockholder. After having examined into the facts, the board is to “audit and allow” the claim for advertising notices and proceedings, which, according to the report of the department of finance, had been published in the Stockholder, at the usual and customary rates for advertising in that paper. To audit an account is to examine and ascertain whether it is accurate. To allow an account or claim is to accept or admit it as a legal demand. The authority to audit and allow an account primarily implies the right to determine whether it is an accurate and just claim. Morris v. People, 3 Denio, 381, 391; People v. Supervisors of St. Lawrence, 30 How. Pr. 173; People v. Green, 64 Barb. 162, 5 Daly, 194; People v. Supervisors of Oneida Co., 24 Hun, 413; In re Murphy, Id. 592; People v. Barnes, 114 N. Y. 317, 20 N. E. 609, and 21 N. E. 739. Authority in a statute to allow an account does not necessarily negative the existence of power to disallow it. People v. Supervisors of Dutchess, 9 Wend. 508. Of course, the word “allow” may be so used in connection with other words in a statute as to negative the idea of power to disallow, but we think it is not in this statute. The right of a municipal corporation to litigate the validity of claims made against it should not be denied, unless deprived of the right by a statute so unequivocal that it needs neither argument nor illustration to make the legislative intent manifest. In other words, in case the legislature intends to compel a municipality to pay a particular claim, which it is not legally liable to pay, it must say so out and out. A statute like the one under consideration can easily be passed on the plea that it simply confers authority on the corporation to pay the claim if, after an examination into the facts, it is found to be just; but a plain statute, commanding a municipality to tax its citizens for the purpose of paying a claim conceded to be illegal, would not readily be enacted. Applying these 781 rules to the construction oí this statute, we do not think it required the board of estimate and apportionment to audit and allow the relator’s claim against the city for publishing 110,721 lines at the usual rates, regardless of whether the claim was just. The order should be affirmed, with costs. All concur.