
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    June 17, 1915.
    THE PEOPLE ex rel. JAMES W. OSBORNE v. BOARD OF SUPERVISORS OF COUNTY OF WESTCHESTER.
    (168 App. Div. 765.)
    (1.) Attorney general—Appointment of special deputy on request of governor to conduct criminal proceedings—When compensation NOT A COUNTY CHARGE.
    An attorney appointed upon the oral direction of the Governor, of which there is no official record, as a Special Deputy Attorney-General authorized to pursue a definite line of investigation of charges relating to the conduct of a State prison, and to prosecute persons involved in the charges, but whose compensation has not been fixed by the Attorney-General, is not entitled under subdivision 2 of section 62 of the Executive Law, as amended by chapter 14 of the Laws of 1911, to compel the board of supervisors of the local county to pay him in accordance with the evidence submitted.
    
      It seems, that the appointment was made under section 65 of the Executive Law.
    (2.) Same—Form of request by governor for appointment.
    The Governor should make his demand under subdivision 2 of section 62 of the Executive Law in an official form, defining the powers to be conferred upon the Deputy Attorney-General and correspondingly withdrawn from the local district attorney, but a special provision superseding the district attorney is not necessary.
    (3.) Same.
    The appointment of a Special Deputy Attorney-General upon the request of the Governor need not be filed with the Secretary of State, under section 9 of the Public Officers Law.
    Certiorari issued out of the Supreme Court and attested on the 21st day of October, 1914, directed to the board of supervisors of the county of Westchester, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in respect to the disallowance of and the refusal to audit the claim of the relator.
    
      James W. Osborne [Gilbert D. Lamb with him on the brief], for the relator.
    
      Charles A. Van Auken, for the respondent.
   Thomas, J.:

The present question is whether the relator had the status intended by subdivision 2 of section 62 of Executive Law, as amended by chapter 14 of the Laws of 1911. Certain facts are conditions precedent to the capacity he asserts: (1) The relator must have been a deputy of the Attorney-General; (2) the Governor must have required attendance by the Attorney-General or one of his deputies before the grand jury for the purpose of managing and conducting a proceeding specified in the requirement of the Governor. In case the status be established, the “ expenses incurred by the Attorney-General, including the salary or other compensation of all deputies employed,” becomes a county charge. The relator was in the appointment described as a Special Deputy Attorney-General, authorized to pursue a defined line of investigation of charges relating to the conduct of a State prison, and to prosecute persons involved in the charges. The Attorney-General may appoint two deputies at salaries fixed, and “ such other deputies as he may deem necessary and fix their compensation.” It does not impair the validity of the appointment that the officer is termed a M special deputy attorney-general.” That means merely that he is a deputy specialized for the purpose named. But the Attorney-General must fix his compensation. It is such com.pensation, together with the expenses, that is a charge upon the county, provided he be directed to act pursuant to section 62, as amended by the act of 1911, chapter 14. But the relator demands that the board of supervisors pay a compensation not fixed by the Attorney-General, as the statute requires, but fixed by the supervisors in accordance with evidence submitted to it, whereupon its action would be subject to the consideration of the court in case a review were had. In such case the appointee would recover his compensation by proving the value of his services and not pursuant to the statutory power of the Attorney-General to fix them. This substitutes a method of ascertaining the compensation by one method while the statute states other exclusive means of doing it. In my judgment, that cannot be done. The statute did not intend that public officers should be compensated upon the basis of a quantum meruit, as courts might determine the same. While I conclude that the relator could be and was duly appointed a Deputy Attorney-General for the limited purpose mentioned, yet his compensation has not been fixed by the Attorney-General, and the board could not act in the absence of it. It was not necessary to file the appointment with the Secretary of State under the Public Officers Law (Consol. Laws, chap. 51, § 9). The purpose of the section is to furnish a record of the designation by the principal officer of the order in which his deputies shall act in case of his absence, inability, or in case of a vacancy in the office. It has no wider or other application. Neither is a special provision superseding the district attorney needed. If the Governor duly make the requirement, the Attorney-General or his deputy attending pursuant to it and within its limits supersedes the district attorney, save so far as the substituting officer directs the conduct of the district attorney. The Attorney-General within the compass of the requirement exercises the functions of the district attorney, but the latter may be required to act in conjunction with, and in subjection to, the State officer. But that indicates how important it is that there be a formal requirement by the Governor. His requisition (1) is the authority of the Attorney-General to attend the term of court or to appear before the grand jury; (2) it defines the scope of his action; (3) it curtails by its terms the functions of the district attorney and takes away from him pro tanto duties and powers granted and imposed by law; (4) it apprises courts, grand jurors and all concerned of the substitution of one public officer for another. In the present case there was no requisition. There is evidence by affidavits not before the supervisors but made a part of the petition that the Governor requested the Attorney-General to appoint deponent a Deputy Attorney-General and in connection therewith directed the Attorney-General, upon deponent’s appointment, to attend by the deputy before a grand jury of the county of Westchester to manage and conduct a criminal proceeding relating to the charges made as to Sing Sing prison, as more fully described by the affidavit. Therein is the requirement, contained merely in a conversation, of which there is no official record. Upon that parol direction rests such authority as the Attorney-General had to send the relator to the duty, and upon it, if it is effective, the district attorney was suspended from his functions, and to it alone must all the official bodies of the State have looked to discover the official status of the relator and what authority remained in the district attorney. When the relator laid his claim before the supervisors, they found no evidences of the right of the Attorney-General or his deputy to appear. If such authority could be presumed, the presumption is overcome by the evidence of the facts later furnished by the relator. I cannot read subdivision 2 of chapter 14 of the Laws of 1911, without concluding that the Governor was to manifest his command in an official form, defining the powers conferred upon the Attorney-General and correspondingly withdrawn from the district attorney. The appointment of the relator was ineffective in that regard, as the function resided alone with the Executive. It seems clear that the Attorney-General employed the relator as a competent attorney to represent him in the particular matter, but while seeking to authorize him, as he might well do, and as I think he did do, under section 65 of the Executive Law, he erred in attempting to bring the matter within section 62, amended as stated. But the fact remains that the Attorney-General employed the relator for the office, and was enabled to do so.

The determination of the board of supervisors of Westchester county should be confirmed and the writ dismissed, with fifty dollars costs and disbursements.

Jenks, P. J., Stapleton and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Determination confirmed and writ dismissed, with fifty dollars costs and disbursements.  