Opinion
September Term, 1898.
Lewis E. Carr, for the relator.
W.H. Dunn, for the respondents.
1. We think that section 2125 of the Code, which provides that "a writ of cretiorari * * * must be granted and served within four calendar months after the determination to be reviewed becomes final," is not solely a Statute of Limitations, but that by implication it grants the relator four months in which to procure the writ in cases like this, in which, although the determining body has finally adjourned after disposition made of the matter, it or its successor at its next authorized meeting can obey the order made by the court.
2. We do not think that the disallowance of the relator's bill by the board of town auditors in 1895 was a final adjudication thereof upon the merits, for the reason that in the manner and form in which it was presented the merits thereof were not properly presented to the board, and, therefore, were not determined. ( Osterhoudt v. Rigney, 98 N.Y. 222, 234.)
3. For the same reason the refusal of the court to grant a mandamus directing the audit of the bill as first presented was proper, and is not conclusive against the presentation of the bill if now it is in such form and accompanied by such proofs as remove the grounds of the objection to which it was at first open.
4. Clearly the relator had the right to one presentation of his bill to the board upon its merits, and if his first presentation of it was through his inadvertence so informal or defective as to justify its disallowance, he could obtain relief neither by certiorari nor by mandamus, and, therefore, should be permitted to re-present his bill in such form as to obtain its adjudication upon its merits.
5. Undoubtedly it was incumbent upon the relator, in order to collect his fees, to show that he was deputy sheriff de jure. This he did by his affidavit of the fact, fortified by his commission of appointment from the sheriff and by proof that he duly took and filed the oath of office. We need not here hold that the relator's title to the office is not voidable in the case of a direct attack in a proper action. If such an action should be brought by the Attorney-General it would be "triable of course and of right, by a jury." (Code Civ. Proc. § 1950.) The alleged defect in the relator's title is founded upon the fact of his non-residence in the county of Clinton. The sheriff "may appoint such and so many deputies as he may deem proper, not exceeding one for every three thousand inhabitants of the county." (County Law, chap. 686, Laws of 1892, § 182.) Other statutes seem to imply that he is a local officer. The deputy in civil matters is the servant of the sheriff. ( Pond v. Leman, 45 Barb. 152; Whitman v. Haines, 21 N.Y. St. Repr. 41; Colvin v. Holbrook, 2 N.Y. 126.) The relator was appointed deputy sheriff of the county of Clinton mainly in order to qualify him to act as peace officer upon the line of the Delaware and Hudson Company's railroad. No action has been brought to oust him; no one claims his place. The services for which he claims his fees were meritorious, and in the line of official duty. The case is not free from difficulty. The majority of the court think that the board of town auditors were not authorized to go behind the prima facie case made by the relator of his de jure title, and thus in a summary manner in effect oust him from his office. (See Matter of Foley, 28 N Y Supp. 611; Matter of Grady, 15 App. Div. 504.)
6. We think the expense of conveying juvenile delinquents to the house of refuge upon the conviction and sentence by a justice of the peace of an offender for an offense committed within his town is a charge upon that town (Town Law, § 165, chap. 569, Laws of 1890) at the rates fixed by the statute; or, if the board of supervisors had fixed different rates, then at such rates. (Chap. 254, Laws of 1859; chap. 446, Laws of 1874, tit. 1, § 29.)
The determination of the board of town auditors should be reversed, with fifty dollars costs and disbursements.
All concurred, except HERRICK, J., dissenting.
I cannot concur in the opinion of Justice LANDON.
In the month of November, 1895, the relator presented a claim for services as deputy sheriff to the board of town auditors of the town of Champlain; such board disallowed his claim; thereafter the relator applied to the Special Term of this court for a writ of mandamus to compel such board to audit his claim; the court refused to grant a mandamus.
The relator thereafter made some corrections in his claim, not affecting the merits thereof, and on the 5th day of November, 1896, again presented such claim to the board of town auditors, by whom such claim was again rejected. The board of town auditors adjourned November 12, 1896, and on the 13th day of November, 1896, delivered to the clerk of the board of supervisors their schedule of audited accounts.
The relator thereafter, by a petition verified January 4, 1897, applied for a certiorari to review the action of the defendants in disallowing his claim, and this writ of certiorari was issued thereupon on the 15th day of February, 1897.
The application for the writ of certiorari was made too late. The board had terminated its labors, and had lost jurisdiction by the delivery of the schedule of claims to the clerk of the board of supervisors. ( Osterhoudt v. Rigney, 98 N.Y. 222; People ex rel. Weekes v. Supervisors of Queens Co., 82 id. 275; People ex rel. Rice v. Auditors, 65 Hun, 414; People ex rel. Cochran v. Board of Town Auditors, 74 id. 83.)
Section 2125 of the Code of Civil Procedure is not in conflict with the authorities just referred to. That section provides that "a writ of certiorari to review a determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator, or the person whom he represents, either in law or in fact."
Prior to the enactment of the Code there was no limitation upon the time within which a certiorari could be issued, provided it was applied for within a reasonable time; what was a reasonable time the court was to determine in each instance upon the particular facts of the case brought before it.
The section of the Code quoted is not an extension of the time within which the writ may be applied for, but a limitation upon the time, and its language does not necessarily conflict with the cases above cited.
If the board or officer whose determination it is sought to review still has jurisdiction, then the proceedings may be commenced within four months; if it has lost jurisdiction, then it makes no difference when it is commenced, whether within four days or four months. The point is, that the body or officer whose action is sought to be reviewed has lost all authority over the matter, and the writ of certiorari cannot revive it.
Matter of Corwin ( 135 N.Y. 245) is not in conflict with the cases herein cited. That was decided under chapter 269 of the Laws of 1880, which provides the method for the review and correction of illegal, erroneous or unequal assessments, and renders inapplicable the common law, as well as the provisions of the Code of Civil Procedure, in relation to writs of certiorari.
One of the reasons for the passage of chapter 269 of the Laws of 1880 was to cure the defect in the remedy by certiorari, pointed out in the case of Osterhoudt v. Rigney, that is, that "the wrong cannot usually be known until it is too late to apply the remedy." (P. 230.) But the statute did not extend the remedy to writs of certiorari generally, but only to certioraris to review illegal, erroneous or unequal assessments; that a writ will not issue to review the determination of a board or officer, after such board or officer has lost jurisdiction of the matter, is now too well established, it seems to me, by judicial authority, to warrant us in attempting to overturn it. This defect in the remedy can now only be cured by legislative action.
The writ of certiorari should be quashed, with fifty dollars costs and disbursements.
Determination reversed, with fifty dollars costs and disbursements.