The sheriff could not have maintained an action against the district attorney for the recovery of the fees in question. (The People a. Van Wyck, 4 Cow., 265.)
The district attorney had no fund under his control belonging to the county, that I am aware of, out of which he could have made payment of those fees. It must be understood, then, in this case, that the district attorney has paid the sheriff’s fees voluntarily, out of his own private funds. How can it be said, then, that he has necessarily expended the money for the payment of these fees ?
The 9th subdivision of section 3, title 4, article 9, chapter 12, *12part 1, of the Revised Statutes, is particularly relied on to sustain the application. This section directs what shall be deemed county charges, and subdivision 9 declares that 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, shall be a county charge.
A specific compensation to the sheriff is provided by law, for such services or fees as those for which the district attorney has here paid him; but there is no provision that such services or fees shall be a county charge.
The statute provides for the payment of certain services or fees of the sheriff in criminal cases, and these are also made a county charge in certain cases.
Perhaps it would be unauthorized to say, that it was not intended by the Legislature, that the fees of the sheriff in civil cases prosecuted by the people, or by the county,. should not be a county charge; but there is clearly no authority of the statute for making such fees a county charge.
These fees cannot be said to have been necessarily paid by, the district attorney, unless they were paid in advance, so as to procure the services to be rendered by the sheriff, or have been so incurred as to make him legally liable to the sheriff therefor on his personal responsibility. Such liability evidently did mot exist, and the fees were not prepaid. Nor was the relator under any moral obligation, personally, because it was his predecessor in office that initiated the actions, and caused the fees to be incurred. No moral obligation rests on the relator as the successor in office of that district attorney who caused the fees to be incurred, because there is no fund pertaining to the office out of which the fees can be lawfully paid by him. If there were any such fund, the relator would have no occasion for the writ of mandamus. The district attorney cannot, by volunteering the payment of these fees, create a county charge which did not otherwise exist. The statute has provided such sheriff’s fees as are a county charge; and in my opinion, those fees of the sheriff which have not been directly made a county charge by statute, cannot be made such by indirection.
Again. • It is a principle of law, well settled, that a mandamus shall not be granted unless the right to it is entirely clear.
In the strongest light that this claim can be placed, it cannot *13be considered that the right to a peremptory writ under these circumstances is free from doubt.
The motion must be denied, but without costs.