I think the orders of the Special and General Terms should be affirmed.
The act of 1887 (Chap. 706), as amended by the act of 1888 (Chap. 261), imposes upon the appellants the duty of appropriating whatever sum may be necessary for the relief of the *Page 498 indigent veterans and their families residing in the city of Rome.
The moving papers show that two hundred and eighty dollars more than has been appropriated is required for such purposes for the year ending November 1, 1891, and specific facts are given indicating the actual necessity for the use of that sum.
These averments are nowhere denied in the opposing affidavits; if they were it would have been the duty of the Special Term to have awarded an alternative writ. But the appellants have rested their defense upon the allegation that they have judicially decided that no more should be expended for such relief by the officers and committee of the Grand Army post. They do not deny that the number of families to be relieved is correctly stated by the respondents, or that the moneys previously appropriated have been actually and faithfully applied in accordance with the design of the statute. It even affirmatively appears from the appellants' papers that the sum appropriated is inadequate for the support of this class of poor persons, for they allege that from February 2 to April 6, 1891, they relieved the necessities of the same persons and families which the respondents are by law authorized to have the care of, and that since October 26, 1891, they have been and are now using the poor funds of the city for their support. There is no charge of extravagance or abuse of trust. It is admitted that the average monthly expenditure by the respondents for the year ending November 1, 1890, was $93.86, and the amount desired for ten months of 1891 is at the rate of $100 per month, while the cost to the city for the months of February and March, including six days of April, when the poor authorities disbursed the moneys for the same purpose, was over $130 per month. A denial of relief to the respondents in this proceeding cannot, therefore, be placed on the score of economy. The fifth section of the act of 1887 prohibits the public authorities of the city from sending any indigent soldier or his family, or the family of a deceased soldier, to the almshouse without the concurrence *Page 499 and consent of the commander of the Grand Army post, and provides that indigent veterans and their families, and the families of deceased veterans, shall, whenever practicable, be provided for and relieved at their homes in the city in the manner specified in sections one and two of the act; that is through the instrumentality of the officers and relief committees of the local post. There is here a plain statutory mandate which the city authorities are required to observe. They are not intrusted with any discretion in the premises.
It does not follow that the amount which may be thus drawn is unlimited. The first section declares that it is only the sums necessary for the relief of this class of poor persons which must be furnished. Neither the public authorities, nor the Grand Army officers can arbitrarily fix the amount that shall be so appropriated. If there is any controversy as to the required sum, it can be judicially determined as other issues of fact are.
The persons to be relieved are also specifically pointed out. They must not only be veterans or the families of veterans, but they must be such as are entitled to relief under the poor laws of the state. If relief is demanded for persons not answering this description, the moneys may be refused, and the applicants compelled to establish their right to relief in the courts.
But in the present case it is not disputed that the moneys demanded are required for the use of the very class which the statute contemplates as the objects of public relief.
The appellants admit the necessity for the expenditure, but refuse to allow it to be made through the medium which the statute has prescribed, and if their position is maintained, the whole scheme and purpose of the law will be defeated.
All concur with EARL, J., except MAYNARD, J., dissenting.
Orders reversed. *Page 500