People ex rel. Gale v. Trustees of School District No. 13

The law upon which the order of the board of supervisors was founded, is ch. 172 of Laws of 1847 (p. 163), as amended by ch. 388 of Laws of 1849 (p. 545). The first section of the first mentioned act makes it the duty of the trustees in certain cases to ascertain the actual amount of costs, charges and expenses paid by any officer of a school district in case of a suit commenced against him for an act performed by virtue or under color of his office, and to cause the same to be collected of the district, and paid to such officer.

The mode of ascertaining the amount is directed in the second and third sections of the act, which is by the claimant applying to the board of supervisors, after notice to the trustees, and service of a copy of the account duly verified.

The fourth section requires the trustees to issue their warrant for the collection of the amount directed by the supervisors to be paid, See.

The act of 1849 merely substitutes an amended section in place of the first section of the act of 1847; and the only difference I can perceive between the original and amended sections is that by the latter, the trustees are not to take any action towards ascertaining the amount of the claim, unless a majority of the taxable inhabitants of the district shall first so determine.

In the present case, it is shown on the part of the defendants, that this claim has never been laid before or acted upon by the taxable inhabitants of the district, nor have they made any determination on the subject. But it is also shown that the relator gave due notice of the application to the board of supervisors, with a copy of the account sworn to as provided in the second section of the act. The act does not require the claimant to prove before the board that the taxable inhabitants have determined upon the allowance of the claim, or that any proceedings have been had by or before them on the subject of the claim. On *335the contrary, the third section declares that upon the appearance of the parties, or upon due proof of service of the notice of the application and of the account, if the board shall be of opinion that the account, or any portion of it, ought justly to be paid, such hoard, by an order to be entered in its minutes, shall direct its payment. The same section declares that the account, with the oath of the party claiming it, shall be prima facie evidence of the correctness thereof. If, when this claim was presented to the board of supervisors, it was accompanied with proof of service of notice of the application and of such copy account, and no one appeared on behalf of the defendants to oppose its allowance and settlement, I think the board had jurisdiction to make the order. In such case it was not necessary for them to inquire whether the taxable inhabitants of the district had determined upon its allowance. The second section of the act made it the duty of the trustees to attend and protect the rights and interests of the district, and if they neglected so to appear, the supervisors were warranted in assuming that no good reason existed why the account should not be ordered paid. It is no answer, in my opinion, for the trustees to say at this stage of the business, that they supposed the application would not be made. If any deception was practiced upon them by the relator or his agents in reference to the presentation of the claim, their remedy, if they have any, must be otherwise than resisting the order of the board. After the board have acquired jurisdiction under the act, and have made the order, we can not go behind it for the purpose of inquiring after irregularities or omissions in the proceedings of the relator, before the making of the order. The act is imperative upon the trustees to issue their warrant for the collection of the money. This they have neglected, although more than thirty days have elapsed since a certified copy of the order was served upon them.

I shall, therefore, direct an alternative mandamus to issue, with ten dollars costs, &c. The order to be so drawn, that the costs of motion are only to be paid in case the trustees obey the writ at once, and not in case they make return, &c.