#### The People *ex rel.*Aaron B. Gardenier, App’lt, *v.*The Board of Supervisors of Columbia County, Resp’t.

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

*Filed February*4, *1890.)*

1. Distbict attobney—Expenses op in pubsuit op indicted cbdiinai a CHANGE ON COUNTY.

One Cadby was indicted in Columbia county for forgery. Before this he had fled to Hamilton, Ontario-, Canada. The relator, then district attorney, went to Hamilton and instituted extradition proceedings. Before he could be arrested there, Cadby fled to Halifax; the relator idlowed and began proceedings here, and am-sted him. Under *habeas corpus,*while passing through the province of New Brunswick, Cadby was discharged. He was then arrested and held in New Brunswick, and upon a requisition was finally lodged in jail in Columbia county. In these various proceedings the relator expended a large sum of money, including railroad fare, hotel bills, telegrams, meals on railroads, detective’s services, and services of attorneys in Canada and in this state. None of these expenses were made by the relator as agent either of the governor of this state or of the president of the United States for the purpose of receiving Cadby *456and bringing Mm to this state. The defendants refused to audit said bill or any part thereof. At special term a demurrer to an alternative writ of *mamda/mm*was sustained. *Held,*error.

2. Same.

Such expenses, so far as they were needful and proper, are a county charge within 1 R. S., m. p. 385, §§ 8 and 9, relating to the expenses of the district attorney necessarily incurred by him in criminal cases, and relating to moneys necessarily expended by any county officer in executing the duties of his office.

3. Same.

When a crime has been committed, and an indictment found, and the ■ accused has escaped, the district attorney is the proper person to decide whether any effort, and what effort, shall be made to capture him. And such necessary and proper expenses must be paid by the county.

(Fish, J., dissents.)

Appeal from the judgment of the special' term, sustaining a demurrer to an alternative writ of *mandamus.*

In brief, the facts alleged are as follows:

One Cadby was indicted at Columbia county in April, 1886, for forgery. Previous to that time he had fled to Hamilton, Province of Ontario, Dominion of Canada.

In March, 1886, the relator, who was the district attorney of Columbia county, went to Hamilton to institute extradition proceedings there against Cadby. The relator commenced these proceedings, but before Cadby could be arrested he fled from that province to Halifax, Hova Scotia, in order to take ship for England. The relator pursued him to Halifax, and there again commenced extradition proceedings. Cadby was arrested. While officers were carrying him through Hew Brunswick, he was taken under *habeas corpus*to St. Johns, Hew Brunswick, and there was discharged about March 18.

Proceedings for extradition were then taken in Hew Brunswick, and Cadby was arrested and held. At relator’s instance, on the requisition of the governor of the state, the president of the United States demanded the delivery of Cadby, and he was thereupon delivered and finally lodged in the jail of Columbia county, about June 2, 1886.

The relator has presented to the supervisors a bill for his disbursements and expenses in this matter. The bill includes railroad fare, hotel bills, telegrams, meals on railroad travel, detectives’ services, services of attorneys employed in Canada, and services of attorneys of this state. The aggregate is over $4,000. Hone of these expenses were made as agent either of the governor or of the president for the purpose of receiving Cadby and bringing him to the state of Hew York.

The relator’s bill was presented to the board of supervisors, and they refused to audit or allow it, or any part of it.

*Albert Hoysradt,*for app’lt; *B. M Andrews,*for resp’t.

Learned, P. J.

The relator relies first on the clause in art. 10 of the treaty between Hnited States and Great Britain, August 9, 1842; Treaties of U. S., p. 320, as follows: “The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.” *457The word “party,” in this clause, refers to the contracting parties to the treaty, as will appear by art. 11. It is intended to relieve the government which delivers the fugitive from the duty of incurring or paying any expense. It has no reference to the question which might arise between the government which receives the fugitive and any of its officers or citizens. That clause of the treaty does not touch the question here raised.

Again, the relator urges that by the regulation of the state department, applications must come from the governor of the state; and that in this state applications to the governor must come from the district attorneys. And it appears that when Cadby had been finally held in Hew Brunswick, .the relator applied to the governor, and, according to the practice, after stating that in his opinion the ends of public justice required that the criminal should be brought to the state for trial at public expense, he stated that he was willing that such expense be a charge on the county of Columbia.

This consent of the relator of course refers to such expense, and only to such, expense, as might be incurred by the governor on the part of the state, or by the president, at his requisition. It did not refer to expenses already paid, or incurred by the relator previously. It could not refer, therefore, to any part of this bill. For the writ expressly states that these expenses were not made as agent or the like in mating the demand or bringing back the fugitive. These expenses were all made as a preliminary to the application to the governor. Whether they are, or are not, properly a county charge, cannot depend on the regulations of the executive department of the state.

Prior to the action of the governor upon the relator’s application the state had incurred no expense. All that had been previously done had been done by the relator voluntarily or in the performance of the duties of his office; and the question of the liability of the county must be decided by an examination of the powers and discretion entrusted to the district attorney. Ho light is thrown thereon by the treaty or by the regulations of the United States or the state government relative to extradition. Indeed, as to anything done in procuring the demand from the governor and the like, the relator is forbidden to take compensation. Penal Code, § 51.

There is no doubt that it was the duty of the relator to conduct the prosecution of the offense of Cadby. 1 R. S., m. p. 383, § 89". It was one cognizable in oyer and terminer of the county of Columbia. Certainly to conduct the prosecution means more than simply to attend the trial. A district attorney would be negligent of his duty who should omit to take any steps to secure the attendance of witnesses or the presence of the accused at the trial. The investigation whether a crime has been committed, and the labor of seeing that the accused person shall not escape, may certainly in some cases come within the words : “ Conduct, all prosecutions for crimes and offenses.” This follows the language used in chapter 8, Laws of 1796, which authorized the. appointment of assistant attorneys-general for several “ districts *458of the state to “ manage and conduct all suits and prosecutions for crimes and offenses.” Hence undoubtedly we have our present “ district attorney.” Thus it has long been the policy of the state that prosecutions should be conducted rather by a public than by a private prosecutor. To conduct such prosecutions must require the expenditure of money. Therefore, it is provided in 1 R. S., m. p. 385, § 3, that the following shall be county charges:

Subd. 2. The fees of the district attorney and all expenses necessarily incurred by him in criminal cases arising within his county.

Subd. 9. The moneys necessarily expended by any county officer in executing the duties of his office, etc.

Now there is no question that the Cadby case arose in the county of Columbia. Were these expenses necessarily incurred? The meaning of these words was passed upon in *People*v. *Super*visors, 32 N. Y., 473. They were said to include such expenditures as were not only needful and proper as distinguished from such as are needless and improvident, but also reasonable, appropriate and necessary in the discharge of the particular official duty. This same principle is affirmed in *People*v. Supervisors, 45 N. Y., 196. It is not necessary to cite further cases.

The supervisors in refusing to audit the relator’s account, and in demurring to the alternative writ, have placed themselves on the ground that these expenses were not a county charge even if they were necessarily expended in the case of Cadby. In this we think they were in error.

Probably it is not for us on this appeal to decide in detail as to the necessity of each item, as no proof on the matter is before us. Prom the circumstances of the case, in any such criminal matter, the district attorney, to a large extent, must be the judge of what expenditures are needed. It would interfere with the course of justice if he had to decide, in every instance, when he expended money, at the peril of having the board of supervisors decide otherwise, after the public interest in the capture and conviction of the accused had subsided. *People*v. *Supervisors,*58 Barb., 139.

The defendant’s counsel in commenting on this provision for the payment of expenses necessarily incurred cite *People*v. *Supervisors of Fulton*County, 14 Barb., 56. But that was a claim for the payment of services rendered by the district attorney for which no compensation was provided by law.

In this case he is not asking for .payment for his services but for reimbursement of expenses. And if these expenses were necessarily incurred (as is admitted by the demurrer) there is no justice in refusing to reimburse him. The expense of prosecuting crimes committed within the county must fall on the county and not on an officer who has been vigilant in doing his duty. We are referred to no case by the defendant’s counsel showing that such expenses as these are not a proper county charge. And it is hardly to be supposed that, in the many cases in which fugitive criminals have been arrested in other states and countries and ultimately brought back to this state, the expense of the discovering *459and arresting them has been borne by the district attorney of the county from his own private funds without reimbursement.

When a crime has been committed and an indictment has been found and the accused has escaped, some one must decide whether any effort, and what effort, shall be made to capture him. We know of no other officer than the district attorney who is to decide this question. Certainly it is not one for the board of supervisors.

If there is any 'benefit to the public in the punishment of crime, it is important that the criminal shall not escape by fleeing to another country. We should be very unwilling to say that expenses of a district attorney, honestly made in the effort to recapture in another country a fugitive from justice were not to be regarded as necessarily incurred.

It is carefully pointed out in *People*v. *Supervisors Delaware*County, *ut*supra, at 199, 200, what are the respective duties of the court and of the supervisors in regard to contingent charges against the county. And it is not on these papers our duty to determine the amount to which the relator is entitled. But he is entitled to have his bill audited in accordance with the views we have stated.

The order sustaining the demurrer must be reversed and judgment for the relator must be granted on the demurrer that a peremptory *mandumus*issue as prayed for in the writ, with costs below and on the appeal.

Landon, J., concurs.

Fish, J.

(dissenting). —The judgment of the special terrm was right, and on several grounds should be affirmed.

*First.*The relator, as district attorney for the county of Columbia, had no call to leave the county and country, and to go into a foreign jurisdiction in pursuit of a fugitive. It was no part of the duties imposed upon him by virtue of his office. It became his duty to attend the criminal courts of the county, to give counsel to and prepare the indictments for the grand jury, and to attend the trials of the indictments so found. When an indictment was found against a person, not already a prisoner, it was very proper for him to issue a bench warrant and deliver it to a sheriff, directing the arrest of the person; and from that point in the case, he had no duty until the party was arrested and in custody.

He was not called upon to accompany the sheriff upon a hunt for the fugitive. The statute did not constitute the district attorney an arresting bailiff; and it did not charge him with those duties which belonged to the executive department of the state or of the United States government.

The extradition of fugitives from justice from foreign countries belonged to the United States government.

The people of the county of Columbia had no more interest in the return of the fugitive than had the people of any other county of the state.

Because the crime was committed within that county it did not throw the burden on the taxpayers of that county to enforce the *460provisions of a treaty between the general government and a foreign province. The county of Columbia could made no demand for his return. If the district attorney had any duty in connection with such a case, it was only to furnish proof to the executive department of the United States, that there was a proper case upon which the government should act

When the relator got beyond the limits of the United States into Canada, all the functions of his office ended. He did not carry with him the powers which he possessed while in the county of Columbia, but was nothing more than an individual, acting upon the impulses of his individual desires. If he assumed to do duty for the United States government, it became and was a matter between him and that government; not a matter for which the tax payers of Columbia county were liable.

It would be much safer to hold that the district attorney in absenting himself from the county by which he was employed, to go into a foreign country, was neglectful of his home duties. It is to be presumed that he was needed within the county for which he was elected. It does not appear how long a time he was absent in pursuit of Cadby ; but assuming that he was rightfully there at all, he could continue his absence for an indefinite period, leaving the affairs at home to take care of themselves.

Upon no principle whatever can his journey into Canada be defended. As well might it be claimed that the sheriff of the county of Columbia was expected to go in person on the trail of a fugitive and attend to the execution of the requisition, as that the district attorney of a county should so do.

When the relator sought to prosecute the proceedings in the courts of a foreign jurisdiction, he took an extremely comprehensive view of his duties as prosecuting attorney for the county of Columbia.

*Second.*There was and is no liability on the part of Columbia county to pay this bill There is no written statute or precedent for it There certainly would be no justice in a law or precedent which required it

The only authority for the extradition of runaway criminals resides in the general government; and the power and authority comes by virtue of treaty stipulations. The high contracting parties may agree as between themselves to any terms or conditions; but their action cannot create obligations upon any person, province or city.

The provision in the treaty, copied in the writ, that the expenses of reclaiming a criminal shall be borne by the party making the application, has reference only to the parties to the treaty. It has no reference to the person or official who may enter the complaint; so that the regulation by the' executive department of the state, requiring that the application shall come from the district attorney of the county in which the indictment is found, with his consent that the expense shall be charged to his county, does not and cannot create a liability against the county. It relieves the state from the burden; but it casts no legal burden upon any other locality.

*461And then again, if it had the effect to fasten the expense upon the county, it could have no reference to the personal expenses of a traveling district attorney through a foreign country, or the expense of litigations before foreign courts.

*Third.*A demand of this kind ought not to be enforced by the arbitrary process of *mandamus.*It ought not to be enforced by any process, unless the law giving it validity is clear and unquestionable. If this precedent is made and established, the result which may come can hardly be estimated. The small bill of $4,013 will be only a premonition of future progress in the same direction. Probably there is not a county in the state but has the same occasion for its local officers to travel in foreign parts. A district attorney who accepted the views maintained by this decision would have an expensive department for his county. There may come a day when an officer of less virtue and integrity of purpose than the relator will secure the office; and who, under the cover of a chase for a fugitive from justice, may, at the expense of the county, take in expensive travel, there being no limit to the line of pursuit.

It was well said by the learned justice at the special term that, *“If this construction can be maintained, it would not only be the privilege but the duty of the district attorney to folloiv a fugitive not only into another state, but to another continent, and his pursuit would only be limited by the extent of the extradition treaties between the United States and foreign*countries.”

The proposition seems untenable, almost from its absurdity. If this bill can be enforced against the defendant, any district .attorney may at the expense of his county, at his option, follow any fugitive who is indicted within his county to the uttermost parts of the earth. The right to enforce the bill against the county would not depend upon his success. The right to be reimbursed does not depend upon the success of the enterprise. In this case, if the relator had failed to capture his man, his claim to be reimbursed would be as good as now.

I conclude that the order of the special term ought to be affirmed, with costs.

Order reversed and judgment for relator on demurrer that a peremptory *mandamus*issue as prayed for in the writ, with costs below and on appeal.