Board of Auditors v. People

Wall, J. This was a proceeding by mandamus to compel the board of town auditors of the town of Cottonwood to audit an alleged claim in favor of the relators against the town. It appears from the averments of the petition that the relators were commissioners of highways of said town, and while acting in that capacity they caused a ditch to be dug along a public highway of the town. This ditch furnished a cause of action to one ¡Robert Scott, who brought suit against the relators, and recovered a judgment against them for the sum of §18 and costs, which .costs, together with attorney fees, amounted to §156.60, making a total outlay of §174.60, for which relators sought to he reimbursed in this proceeding. The petition alleges that the ditch was a benefit to the highway, and that the town is enjoying the advantage thereby afforded. It is further alleged that on the 3d day of April, 1888, at a regular town meeting, a resolution was adopted making said sum a charge upon the town, to be paid out of the town funds, and that the sum should be audited and allowed against the town. It is furthei alleged that the board of town auditors, though duly requested, refused to audit said account and make it a town charge, and to compel them to do so, this petition was filed. A demurrer was interposed to the petition, which was overruled, and the defendants not desiring to answer further, judgment was entered as prayed, from which an appeal is prosecuted to this court. The statute provides that in each town the supervisor, town clerk and the justices of the peace of the town shall constitute a board of auditors, who shall meet at the town clerk’s office for the purpose of examining and auditing the town accounts semi-annually, on the Tuesday next preceding the annual meeting of the county board, and on the Tuesday next preceding the annual town meeting, at which semi-annual meetings they are required to examine the accounts of the supervisor, overseer of the poor, and the commissioners of highways, for all moneys received and disbursed by them, and also to examine and audit all charges and claims against the town, and the compensation of town officers, except that of the supervisor, for county service. The accounts so audited and those rejected, if any, are to be delivered with the certificate of the auditors to the town clerk, to he by him kept on file for public inspection, and to be pro-' duced and read at the next annual meeting, and the accounts so audited, when certified to the county clerk, become the basis pro tanto of the tax levy of the town. Chap. 139, Art. 13, R. S. It will be seen that the action of the board of auditors is of the utmost importance, and that their certificate when not impeached has all the force and effect of a final judgment against the town, to be collected by the process of taxation. The board is composed of town officers, chosen by the people, and presumably worthy of public confidence. It is reasonably clear that in the general discharge of their duties, they are expected to exercise their own judgment and to reject all claims not properly chargeable against the town. It may be conceded that when a court of competent jurisdiction has determined the liability of the town to pay a certain demand, it would be the plain, unquestionable duty of the board to audit and allow the claim, so that it may be included in the next tax levy, as was held in Lower v. United States, 91 U. S. 536, and perhaps there are other instances where the duty to audit is so manifest that mandamus will lie; but whenever there is not so clear and undoubted a right, and where there must be investigation and decision upon facts to be presented and considered, where judgment and discretion must be exercised, mandamus will not furnish the appropriate remedy to compel a particular action or decision. The circumstance relied upon here is that the electors at a town meeting approved this claim and ordered it paid, and the question arising is, what legal significance is there in such action of the town meeting. The town is the creature of the Legislature, endowed witli limited power's and functions, to be used for the purpose of administering government in the locality. It is a mere agency of the State, and can do nothing beyond the defined limits of authority prescribed in the statute. The powers to be exercised by the electors at the town meeting are set forth with precision and particularity, but we find nothing which in direct terms or by inference would authorize them to pass upon and allow or reject this or any such demand. We find that the board of auditors is charged with this very duty, and upon familiar rules of construction we hold that the giving of such power to the one and not giving to the other is in effect an exclusion as to the latter. Hence it is plain that the vote of the electors in the town meeting would not bind the board to reject a proper claim, or to audit and allow an improper one. Then is this claim so clear and unquestionable that it was the undoubted right of the claimant to have it audited and included in the tax levy for collection ? The judgment in the case of Scott v. the relator was conclusive as to the parties thereto, and those in privity with them, but not as to others. It does not appear what was the nature of the injury done to Scott by the making of the ditch, but it must be inferred, we think, that it was from water thereby turned upon his land. If the commissioners found it necessary to inflict such injury upon the land owner they should have proceeded under Sec. 8, Gh. 121, and having ascertained the damages as there provided, they could lawfully appropriate the road and bridge money of the town to pay the same. If, without resorting to the forms authorized by law, they inflict injury, they can not ask the town to pay the expenses incurred by them in defending a suit brought against them for such illegal act. In Cooney v. The Town of Hartland, 95 111. 516, the Supreme Court held that the town was not liable to the land owner for an injury to land caused by the unlawful conduct of the highway commissioners in diverting water from its natural course in the construction or improvement of a public highway. It was there said that if the commissioners seize property without lawful right, or injure the same unlawfully, the tort is that of the men who did the act, and can not properly be regarded as the act of the corporation. . The claim here presented is by the commissioners for indemnity against the loss sustained by them in a suit brought by the land owners on account of an illegal act for which, according to the rule announced in the case last cited, no action would lie against the town. If the land owner could not recover in a direct proceeding against the towrn, upon what ground can the commissioners succeed in this proceeding? We are of opinion the court erred in overruling the demurrer and in rendering judgment according to the prayer of the petition. The judgment will therefore be reversed and the cause remanded. Reversed and remanded.