#### People *ex rel.*Morrison *v.*Board of Sup’rs Hamilton County.

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

May 26, 1890.)

1. Counties—Supervisors—Designation of Official Paper.

Under Laws ÍT. Y. 1886, c. 515, providing that the boards of supervisors in the several counties shall designate newspapers “to publish the laws, ” a designation of papers “to do the public printing” is sufficient.

2. Same—Mandamus to Enforce Claim.

It is the duty of a board of supervisors to allow a claim against the county, where the amount is undisputed, and its refusal to do so is not a mere error of law, but a breach of duty, which the courts will remedy by *mandamus.*

*898. Accord and Satisfaction—Part Payment.

Acceptance ol a check for part of a claim against a county, where there Is no dispute as to the facts, and no agreement that it shall be in full, will not preclude a recovery for the residue. Distinguishing *People*v. *Supervisors,*33 Hun, 305.

Appeal from special term, Fulton county.

Application by Joel B. Morrison for a peremptory writ of *mandamus*requiring the board of supervisors of Hamilton county to audit and pay a balance of relator’s bill for printing. The application was denied, and relator appeals. Laws H. Y. 1886, c. 515, amending Laws 1845, C. 280, § 3, is as follows:

“Sec. 3. It shall be the duty of each board of supervisors in the several counties of this state, at their annual meeting, or at any special meeting called for the purpose, to appoint the printers for publishing the laws in their respective counties. The appointment shall be made in the following manner: The members of the board of supervisors representing, respectively, each of the two principal political parties into which the people of the county are divided, or a majority of the members of the board of supervisors representing, respectively, each of such political parties, shall designate, in writing, a paper fairly representing the political party to which they respectively belong, to publish the laws, and such designation shall be signed by the members making it, and filed with the clerk of the board of supervisors, and the two papers so designated shall publish the laws. In case the members of the board of supervisors representing either of the two principal political parties into which the people of the county are divided, or a majority of such members, cannot agree upon a paper, then, in that case, they shall make report to that effect to the clerk of the board of supervisors; and such board shall, by resolution, designate a paper fairly representing such political party, to publish the laws. If there shall be but one paper published in the county, then, in that case, the laws shall be published in that paper. ”

Argued before Learned, P. J., and Landon and Mayham, JJ.

*Clarence W, Smith,*for appellant. *John M. Carroll,*for respondent.

Learned, P. J.

A board of supervisors has a twofold position. It is a tribunal for passing upon claims against the county, and it is also the representative of the county against which the claims are presented; and because it is such representative the court may properly compel the board to pay claims, when there is no question of fact to be decided, and where such payment is a plain matter of duty, and not of discretion. There is no dispute about the facts in this case. The board designated two papers, one of which is the relator’s, to do the public printing, and established the price to be paid. The comptroller sent to the relator’s paper the redemption list (so called) of lands sold, to be published as required by law. The relator published the list, as was his duty. He rendered a bill to the board for printing, which included an item of $420 for publishing this list. The board allowed the bill, except that for the publishing this list they allowed only $60. The total amount allowed was $686.50, for which the clerk gave him a check, which was paid. He now seeks by *mandamus*to compel the payment of the balance, $360.

The first point made by the defendants is that under chapter 515, Laws 1886, the relator’s paper was not properly designated. Ho such allegation is made in the opposing affidavits; and it will be seen by that law that, in a certain case, the board may designate the papers by resolution. We ought not to assume, with no proof on the subject, that this case did not exist. In the case of *People*v. *Supervisors of Hamilton County,*73 N. Y. 604, the question was whether under chapter 662, Laws 1870, the supervisors had power to determine whether there should be one or more newspapers designated. The court held that the board had this power, and that, as they had *90designated one only, the comptroller was not authorized to publish in another, also. But in this case two papers were designated; no question was made as to the manner of designation; the relator has acted thereon; and the defendants do not now set up any facts showing that a designation by resolution was not proper. It is true that the language of the resolution is “to do the public printing,” while the language of the act last cited is “to publish the laws. ” But it is plain that the publication of the Session Laws was intended. Such publication was included in the relator’s bill, and was paid by the defendants, and in their opposing affidavits they make no claim that the resolution did not include the publication of the Session Laws. It was their duty to make a designation, and they made no other than this. The words “public printing” are broad enough to include the publication of the Session Laws.

The next point of the defendants is that, in auditing and allowing the relator’s bill at $60, they acted judicially, and their determination is conclusive. It must be conceded that, where a question of fact is to be determined by the board,—such as the amount of work done for which a claim is made, or the value of such work, and the like,—there the board has a right to decide, and *mandamus*will not lie. But, on the other hand, where no question of fact exists; where the amount of services rendered is undisputed; and where the rate of compensation is established by law or by undisputed contract, so that, on the facts, a clear, positive, unquestionable duty exists that the board should pay the claim,—then the board cannot evade this duty by saying that the board is a *quasi*judicial tribunal. It may not always be easy to draw the line, but such we understand to be the settled distinction. The latest case in which this matter was discussed is *People*v. *Barnes,*114 N. Y. 317, 20 N. E. Rep. 609, and 21 N. E. Rep. 739, which case was heard a second time on a motion for a reargument. While the court held that, in that case, *mandamus*would not lie, the decision was on the ground that there was a disputed state of facts. And it was admitted that if the claims were made by statute, or by some settled rule of law, legal charges, the case would have come within the cases of *People*v. *Supervisors Delaware County,*45 N. Y. 196, and *People*v. *Town Auditors,*82 N. Y. 80. The same doctrine is found in *People*v. *Supervisors Cortland County,*58 Barb. 139. But the defendants insist that where, on undisputed facts, it is the duty of the board to allow a claim at an amount determined by statute or contract, yet that, if they refuse to do this, such refusal is an error of law, which must be reviewed only by *certiorari.*Here, however, they overlook what was pointed out above, viz-., that the board of supervisors is not solely a judicial tribunal; but it is also the person, or the representative of the person, which owes the debt. If the board were merely a judicial tribunal, the court would not by *mandamus*control its action. But it is the official body charged with the duty of causing the debts of the county to be paid. And when there is no question as to the facts on which the debt arises, and as to the amount of the debt, then the board may be properly commanded to pay. To refuse to pay is not a mere error of law; it is a breach of duty.

A further point of the defendants is that the relator has lost his rights by accepting the check, which included part of his claim. We think not. Most of that check was for the rest of his bill. He could not divide the check, and was not bound to lose what was paid him. There was no compromise of a disputed claim. There was only a payment of a part of what was legally due. In *People*v. *Board Supervisors Queens County,*33 Hun, 305, there was a dispute as to the facts, and the amount allowed and accepted was stated to be in full. Such is not the case here. See, on this point, *People*v. *Supervisors Cortland County, ut supra.*If, as we have shown, the board had no judicial discretion to exercise, a part payment does not satisfy the claim.

*91It was further urged by the defendants that the words “redemption list” in the relator’s bill did not necessarily mean the notice to redeem lands sold for taxes issued by the comptroller. If the board had desired further evidence, when the bill was presented they might have so stated. But it does not appear that any doubt existed as to what the bill meant. In the affidavits used on this motion the matter is explained fully, and the defendants’ affidavits make no denial. It is evident that the matter was perfectly understood. Order reversed, and peremptory *mandamus*granted, with $50 costs and disbursements. All concur.