People ex rel. Conway v. Board of Supervisors

Gilbert, J.: It is reasonably certain that the object of the act of April 1, 1872, was to give the defendants a discretionary power, and not to impose upon them a positive duty. This is shown as well by the language employed, as by the circumstances in which the claim of the relator originated. By the first section of the act, the defendants are authorized to audit and adj'ust the claim, and the second section provides that they “ may cause to be levied and collected upon the towns of Geneseo and Leicester such sum as shall be found necessary to pay the amounts allowed.” Before the passage of the statute, neither the county of Livingston nor the towns named were under any legal liability to the claimant. The claim was for building a bridge, under a contract with the commissioners of highways of both said towns, and they had no authority to enter into the contract on behalf of the towns. The construction of the bridge might have been a proper county charge if the work had been done under the authority of the board of supervisors. (Phelps v. Hawley, 52 N. Y., 23.) As that board had no power to audit or allow any but legal claims against the county, it was necessary for the relief of the claimant, that the legislature should interpose and confer upon the board additional power, namely, that of auditing and allowing a claim, which, however equitable and j'ust, was not a valid one, enforceable in a court of j'ustice. Hence the enactment of the statute of 1872, which in its terms is permissive and not mandatory. Such statutes are never construed as imposing a duty to exercise the power conferred by them, unless the public interest requires it, or a party before the court is entitled by virtue of an antecedent right, to have the power exercised for his own benefit, but will be so construed in order to enforce a right already existing. (Newburgh Turnpike Co. v. Miller, 5 Johns. Ch., 101; Mayor v. Furze, 3 Hill, 612; Baldwins. The Mayor, 2 Keyes, 410 ; Phelps v. Hawley, supra; People ex rel. Otsego Bank v. The Board of Sup. of Otsego, 51 N. Y., 401.) The appellant, however, contends, that the board having audited the claim, she acquired thereby a vested right to have the tax levied and collected [575] for the payment thereof. If the foregoing views are correct, this position is untenable, for' the authority conferred by the act is entire; and the exercise of' one part of it does not, of itself, confer a right to demand the exercise of the other part. We are also of opinion that the proceeding which the appellant relies upon to constitute an audit, was not in fact such an absolute one, as has the legal effect of a final and conclusive audit or allowance of the claim. What the supervisors did, was to adopt a report of a committee of the board, recommending that a certain sum should be awarded to the claimant, on the condition, that it should not be levied or assessed until the claimant should have executed a bond to protect the county against any litigation which might grow out of the action of the board upon the claim, and a proper discontinuance of several pending suits. This condition has not been complied with; consequently, no effectual award or audit has been made. The return states the foregoing facts, and denies that the board of supervisors audited or allowed the claim. The demurrer admits the truth of the facts set forth in -the return. Without an audit the claimant is not in a position which entitles her to ask for a mandamus to compel the levying of the tax. The judgment must, therefore, be affirmed, with costs. Present -— Mullin, P. J., Smith and Gilbert, J J. Judgment affirmed.