It was insisted by the attorney general that the draft was not made in conformity with the act of 1851. That act directs that the award, made in pursuance of its provisions, shall be paid by the canal commissioners, &c. As the draft in question is signed by one commissioner only, it is insisted that it is not drawn in the manner authorized by law. But I do not think this objection should prevail. The care and superintendence of the canals generally is conferred by law upon the canal commissioners. In prescribing their duties and powers, the plural number is almost uniformly employed—and yet the commissioners are required to give to each one of their board, a specified portion of the canals in special charge.
The execution of the powers and duties of the commissioners, in respect to each division, is practically committed to the commissioner having that division in charge. Hence it has been held, that when the statute gives to the “ canal commissioners” a right to appeal, it is sufficient, if the appeal is signed by the commissioner having in charge that part of the canals to which it relates. (The People v. The Commissioners of the Canal Fund, 3 Hill, 599.) In this very case, the contracts were executed by one commissioner alone.
Again, the act under which this award was made, requires the canal commissioners to pay the amount “as for unpaid arrears upon said several contracts respectively.” The sum awarded is to be deemed money due the contractor upon his contracts. It is to be paid in the same manner as other payments to contractors are made. By the 39th section of the statute, relating to canal commissioners, their powers and duties, (1 R. S. 224,) it is declared that “ either of the canal commissioners may draw upon the commissioners of the canal fund for *90any sum to be paid to a contractor upon his contract; and if a copy of such contract shall have been duly filed in the office of the comptroller and a receipt of the contractor for such draft shall also be filed in the same office, it shall be the duty of the commissioners of the canal fund to pay the draft.” By the 11th section of the act in relation to the canal department, (Session Laws of 1848, p. 273,) all moneys authorized by law to be paid by the commissioners of the canal fund, are to be paid by the treasurer, on the warrant of the auditor. If, then, this award is to be regarded as money due to the relator for unpaid arrears upon his contracts, the draft made by the acting commissioner upon the auditor for its payment, is expressly authorized by law, and it was the duty of the auditor to make his warrant upon the treasurer for its payment.
But it was insisted that the arbitrators in making their award exceeded their powers, and that therefore it is void for want of jurisdiction. The submission was made in pursuance of the act of 1851. This act required the canal commissioners to cause the claim of the relator for additional allowance for extra work, and “ all other claims for compensation existing under the contracts, to be settled in the manner provided by the contracts”— that is, by arbitration. The legislature evidently contemplated a final settlement of all the claims of the relator upon the state on account of any matter connected with the contracts. The award has been made upon this basis. It embraces allowances for work done under the contracts, for extra work and for damages sustained by the relator in consequence of being delayed in the prosecution of the work, and interest upon moneys due him and withheld. I am unable to perceive that any of these allowances are not within the terms of the submission. So far, therefore, as the amount awarded to the relator on account of-his, contracts is concerned, I think the arbitrators have not gone beyond the powers conferred upon them. Whether or not they have erred in the decision of questions properly before them, there is now no occasion to inquire.
In respect to the allowance of $968 for “ counsel fee, attendance of witnesses, and expenses of rooms for hearing,” and the *91further sum of $1120,95 for “ fees and expenses of arbitrators,” the case is not so clear. Indeed, I am inclined to think the arbitrators were not authorized to include these expenses in their awards. It is true that it has been repeatedly held in this state, though I think without much consideration, .that the power of awarding costs of the arbitration is necessarily incident to the authority conferred on the arbitrators of determining the matters in controversy. This was so decided in Strang v. Ferguson, (14 John. 161;) and again in Cox v. Jagger, (2 Cowen, 657.) See also Nichols v. The Rensselaer County Mutual Insurance Company, (22 Wend. 128.) The same rule is also laid down in Kyd on Awards, 152, (ed. of 1808.)
But whether the arbitrators had power to award the payment of the costs and expenses of the arbitration or not, I do not think the commissioners were bound to litigate the question. It was, to say the least, a doubtful question. The action of the arbitrators was sanctioned by the decisions already mentioned, and I think too, by a pretty general usage in this state. It certainly cannot be regarded as unjust that a party having a claim against the state, which he has been able to establish as just, should, to a reasonable extent, be indemnified for the expenses to which he had been subjected in its prosecution. It was the province of the canal commissioners, and not the auditor, to determine whether the award should be paid or resisted. The act under which the proceedings were had, charged that duty upon them. They were parties to the award, and if they, being parties, chose to acquiesce in the decision, it did not become the auditor to interfere. Ho law has conferred upon him the power to decide upon the validity of the award. In assuming to do so, he has more certainly transcended the authority vested in him, than the arbitrators did in awarding to the relator the costs and expenses of the arbitration. The law declares that when a canal commissioner makes his draft for any sum to be paid to a contractor upon his contract, it shall be the duty of the auditor, if a copy of the contract and a receipt of the contractor for such draft have been filed in his office, to pay the draft. Such a draft was drawn. A copy of the contract and *92the contractor’s receipt were filed. It was the clear duty of the auditor to obey the law and pay the draft. A peremptory mandamus must therefore be awarded.
[Albany Special Term, April 27, 1852..Harris, Justice.]