#### The People *ex rel.*Patrick Vaughn *et al.,*App’lts, *v.*The Board of Supervisors of Rensselaer County, Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

1. Counties—Board of Supervisors—What acts mat be delegated TO AGENTS.

*Semble,*that in. so far as a county board of supervisors exercises governmental functions, such as the imposition of a tax, or the adoption of any act in the nature of a governmental or administrative regulation, the whole-body must act; but in so far as it is a mere business corporation, it may delegate the execution of its mechanical and physical work to agents, like, any other corporation.

2. Mandamus—To Compel audit of claim—When not granted.

The relators not having a valid contract are not entitled to a mandamus to compel an audit upon the basis of a contract price for the work done by *372them. All they could ask was that the board should audit their bill at what their work was reasonably worth; and that audit is a final judgment between the relators and the board, and conclusive.

Appeal from a judgment for defendants entered in Rensselaer county upon the trial before the court and jury of the issues joined by the return of the defendants to an- alternative writ of mandamus. At the close of th.e relator’s evidence, the court dismissed the writ.

The relators had presented a bill to the defendants for audit for building 1116 feet of fence at $2.95 per foot, claiming to have built it under a contract with the defendants at ■that price. The defendants audited the claim at $1.50 per foot.

*James Lansing,*for app’lts; *E. L. Fursman,*for resp’t.

Landon, J.

The trial court found in substance that the Telators had no valid contract with the board of supervisors under which they sought an audit at the alleged contract price, and now seek by *mandamus*to compel such an .audit. The relators did have a contract signed by the chairman of the committee of the board of supervisors on lands and building, in which the board is recited as the contracting party.. An examination of the authority vested by the board in this committee shows that it was limited to authority “to advertise for sealed proposals for certain work to be let to the lowest responsible bidder, the building committee together with the architect to furnish "the necessary plans and specifications.” The building committee was also instructed 1 ‘ to include in their proposals for work at the county house, the building of necessary fences.” The architect made plans and specifications for these fences, and left them with the committee. The committee advertised for proposals. The relators submitted to the committee, proposals for building the fences at the -county house. The committee received other proposals. They compared them and found the relators to be the lowest bidders, and thereupon the chairman made the contract with them under which they performed the work and furnished the materials. After the contract was let, a supervisor offered a resolution in the board, preceded by a preamble, reciting that 11 the building committee of this board have, by direction of the board, gone on, advertised for proposals and awarded contracts for certain work of grading, building fences, etc., on the county farm to certain contractors, and such contractors have commenced such work and nearly completed the same,” the resolution -directing the borrowing of money to pay for the work. The preamble and resolution were offered, to show notice to the board. What action was taken by the board upon the resolution was not offered to be shown. The contract *373price was $2.95 per lineal foot. A subsequent • board of supervisors repudiated the contract as unauthorized and ■excessive, and audited the claim of the relators at $1.50 per lineal foot. The building committee consisted of three persons. Mr. Barker was the chairman. Mr. De Freest, one of the committee, said he would sign it, but did not do so. The other member did not attend any meeting of the ■committee, in connection with the award' of contract to the relators.

It is contended by the defendant that the board of supervisors could not delegate to a committee the power to approve the plans, details and price of the work, including the making of the contract for building the fence.

It is not easy to draw the exact line between those duties which are by the statute committed to the judgment and discretion of the entire board, and whose performance therefore cannot be delegated to a committee or agent, and those purely ministerial and executive duties which the board may delegate to a committee, or even to an employee or servant. *Thompson*v. *Schermerhorn,*(6 N. Y., 92), and *Birdsall*v. *Clark,*(73 N. Y., 73), show that acts which embrace the plan of a local improvement, to result in a tax to be paid by the owners of property along the line of the improvement, cannot be delegated. *Edwards*v. *City of Watertown,*(24 Hun, 428) is to the effect that a common council may authorize a committee to buy the necessary furniture for its chamber.

I incline to the opinion that m so far as such a body exercises governmental functions such as the imposition of a tax, or the adoption or ordering of any act in the nature of a governmental or administrative regulation, the whole body must act, but in so far as it is a mere business corporation, it may delegate the execution of its mechanical and physical work to agents, like any other corporation. I should think the building of a board fence around a farm lot, such a piece of business. But it is not necessary to decide this question, for the reason that in this case the committee on lands and buildings were not authorized to enter into any contract. They were authorized to take all the steps preliminary to the execution of the contract, and no more. The preamble accompanying a resolution which was subsequently offered in the board, falls short of a ratification of the action of the committee, because no action upon the resolution is shown, and hence no ratification is shown.

Failure to show what was done with the resolution is a failure to show ratification. The board did something or nothing, and we are not advised which.

The relators not having a valid contract, are not entitled to a mandamus to compel an audit upon the basis of a con*374tract price. All they could ask was that the board should audit their bill at what their work was reasonably worth. This the board did, and that audit is a final judgment between the relators and the board, and conclusive because rendered upon the only right the relator could establish. *Osterhoudt*v. *Rigmey,*98 N. Y., 222, 232.

The judgment is affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.