Gardenier v. Bd. of Sup'rs of Columbia Cnty.

• Decision Date: 31 May 1892
• Citation: 31 N.E. 322,134 N.Y. 1
• Parties: PEOPLE ex rel. GARDENIER v. BOARD OF SUP'RS OF COLUMBIA COUNTY.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 1

31 N.E. 322

PEOPLE ex rel. GARDENIER

v.BOARD OF SUP'RS OF COLUMBIA COUNTY.

Court of Appeals of New York,

Second Division.

May 31, 1892.

Appeal from supreme court, general term, third department.

Action by the people on the relation of Aaron B. Gardenier against the board of supervisors of the county of Columbia. From a judgment entered on the order of the general term reversing an order and judgment sustaining demurrer to the alternative writ of mandamus, and directing that a peremptory writ issue, defendants appeal. Affirmed.

Levi F. Longley, for appellants.

Albert Hoysradt, for respondent.

The other facts fully appear in the following statement by BRADLEY, J.:

It appears that John H. W. Cadby, who was indicted in Columbia county in April, 1886, for the offense of forgery, had before then fled from the county to the dominion of Canada. That the relator, who was district attorney of that county, having learned that Cadby was at Hamilton, in the province of Ontario, went there in March, 1886, for the purpose of instituting proceedings in the courts of that dominion to secure his apprehension, with a view to extradition. The relator had with him a warrant against Cadby issued by a police justice of the city of Hudson, and proceedings were taken at Hamilton for his arrest, but before it was accomplished he fled from there to the city of Halifax, in the province of Nova Scotia, to which place the relator pursued him, and there caused his arrest, with a view to have him taken to Hamilton before the magistrate there who issued the warrant; but that such purpose was interrupted by his discharge from custody by means of a writ of habeas corpus in the province of New Brunswick, where new proceedings were necessarily instituted for his arrest and custody, and they resulted in his imprisonment there for such purpose, and were sustained on review taken and had in the latter province. Afterwards the relator, as such district attorney, made, through the governor of the state of New York, application to the executive department of the United States for extradition of Cadby pursuant to the treaty of 1842 between the United States and Great Britain; and, upon the requisition of the governor, such proceedings were taken by the executive department of the United States that Cadby was removed from the dominion of Canada to the jail of Columbia county. The purpose of this proceeding was to require the board of supervisors of that county to pass upon, audit, allow, and provide for the payment as a county charge of the relator's claim, or so much of it as should be found due him for the expenses incurred and paid by him for the purpose before mentioned, in Canada, including his necessary expenses incurred and paid by him while so engaged there; it appearing that such board had refused to audit or allow his bill for such expenses, or any portion of it.

BRADLEY, J., ( after stating the facts.)

The matters stated in the alternative writ, so far as they purport to be of fact, must, for the purpose of this review, be taken as true. The question is whether or not his official relation to Columbia county of district attorney enabled the relator legitimately to charge the county with expenses incurred and paid by him in the dominion of Canada, in the proceedings taken there with a view to extradition of the person who had committed an extraditable offense in such county, and fled to that dominion. The expenses in question were for that purpose wholly incurred prior to the time of making application through the governor to the president of the United States, with a view to such proceedings, pursuant to the treaty with Great Britain, as were necessary to place the fugitive from justice within the jurisdiction of the courts of the county in which the crime had been committed. Proceedings taken and had for that purposewould necessarily be attended with some expense. This, as between the contracting parties to the treaty, would have to be assumed by the one seeking the mandate, as appears by the provision of the treaty of 1842, that ‘the expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.’ Such party, in this instance, was the United States. It is unnecessary to refer specifically to the regulations on the subject of extradition. The application for such purpose is from the district attorney of the county in which the offense has been committed to the governor of the state, and by the governor to the president; and, pursuant to the regulations of the executive department of the state, it must appear by the application of the district attorney that he is willing that such expense be a charge on his county. The expenses referred to in the treaty and in the regulations are those which are incurred after application for requisition is made, and attend the process of extradition thereupon had of the fugitive. Those do not include the expenses constituting the relator's bill, which embraces only those incurred by him prior and with a view to such application and its result. The question here, therefore, relates to his powers in his official relation to his county, in respect to the prosecution of those charged with the commission of crime there. The theory adopted by the statute of this state is that criminal offenders be tried in the county where the crime is committed, and that the expense of the prosecution be borne by the county; and it is also provided that ‘it shall be the duty of every district attorney to attend the courts of oyer and terminer and jail delivery and general sessions, to be held from time to time in the county for which he shall have been appointed, and to conduct all prosecutions for crimes and offenses cognizable in such courts.’ 1 Rev. St. p. 383, § 89. It thus appears that the duty of prosecution for criminal offenses committed in his county is devolved upon the district attorney. And in respect to the expense incurred by county officers it is provided that ‘the following shall be deemed county charges:’ ‘(2) All expenses necessarily incurred by the district attorney in criminal cases arising within the county.’ ‘(9) The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law.’ ‘(15) The contingent expenses necessarily incurred for the use and benefit of a county.’ Id. p. 385, § 3.

This statute charges upon a county the expenses, and those only, which are legitimately incurred for purposes within the powers or duties of those who have some official or representative relation to it. The district attorney is a county officer, and has been such since 1818, (chapter 283.) Prior to that time, and from 1796, (chapter 8,) as assistant attorneys general and as district attorneys, (Laws 1801, c. 146,) they were appointed for districts; and their duties were defined in their relation to the districts substantially as they were and have been to the counties for which they were appointed, and later have been elected. The fact that the office has become a constitutional one (article 10, § 1) adds nothing to the nature and extent of the powers of district attorney. The responsibility is upon him to conduct all prosecutions for crimes triable in his county. It may be assumed that he was charged with the duty of prosecuting Cadby, who had committed a crime there; and for that purpose it would seem that, unless the performance of that duty is restricted by some other statute, it was, by virtue of that before mentioned, within his power to do that which was essential to such prosecution; and that is a matter necessarily, to a great extent, dependent upon his judgment. This is so as to all county officers in respect to the subject to which their duties relate. They take, as incidental to them, such powers as may be deemed necessary to the proper performance of their official duties. People v. Supervisors of Delaware Co., 45 N. Y. 196;People v. Supervisors of New York, 32 N. Y. 473;Neary v. Robinson, 98 N. Y. 81;Hoevenbergh v. Hasbrouck, 45 Barb. 197.

The offending party had fled from Columbia county, beyond the reach of any process the district attorney could issue, and had...