
    William Willett, Jr., Respondent, v. Charles S. Devoy, Individually and as Clerk of the County of Kings, Appellant. Joseph Cassidy, Respondent, v. Charles S. Devoy, Individually and as Clerk of the County of Kings, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    May, 1915.)
    Public Officers Law—section 67 — mandatory — action for treble damages under section 252 of Judiciary Law for violation of said section 67.
    The provisions o£ section 67 of the Public Officers Law, that a county clerk shall not demand a fee for the performance of a service which he is bound to perform unless the law specifically authorizes the demand and collection of such fee, are mandatory and the statute does not distinguish between fee and salaried officers and leaves no discretion with the public officer designated, nor does it involve any question of good faith and intention, and where such officer violates said section 67 he is not liable criminally but to an action for treble damages by the person aggrieved, as provided by section 252 of the Judiciary Law.
    Appeal from judgments of the Municipal Court, borough of Brooklyn, rendered in favor of plaintiff.
    Hirsh & Newman (Benjamin Reass, of counsel), for appellant.
    Robert H. Elder (Otho S. Bowling, of counsel), for respondent.
   Van Siclen, J.

Appeals from separate judgments in favor of each plaintiff rendered by the court without a jury upon an agreed state of facts submitted to the court in writing. Separate actions were brought- by each plaintiff to recover treble damages for violation by the defendant of section 67 of the Public Officers Law and section 252 of the Judiciary Law.

The plaintiffs, after being convicted of a crime in the Supreme Court, appealed from the judgments of conviction to the Appellate Division, and for the purposes of such appeals it was necessary under the practice that the stenographer’s minutes as taken at the trial should be certified by the defendant, as county clerk, and as thus certified transmitted to the Appellate Division. The defendant refused to so certify without payment of a fee, amounting to thirty-three dollars and twenty-seven cents. The plaintiff then applied to the Supreme Court for a peremptory writ of mandamus to compel the defendant to so certify without fee, but the application was denied, and the plaintiffs appealed from the order thereon to the Appellate Division. Being unable to delay their appeals from the judgment of conviction until the determination by the Appellate Division of the correctness of the refusal of the writ of mandamus, the plaintiffs thereupon paid to the defendant, under protest, the fee demanded. Thereafter the Appellate Division, in Matter of Cassidy v. Devoy, 164 App. Div. 897, and Matter of Willett v. Devoy, 163 id. 553, reversed the order denying the writ, granted the writ, with costs, and in the course of its opinion stated that the demand for fee by the defendant was unjustified.

The sections of the laws applicable to such a situation are above referred to and provide that á county clerk shall not demand a fee for the performance of a service, which he is bound to perform, unless the law somewhere specifically authorizes the demand and collection of such fee. The other section of the law provides that an officer violating the above section shall be liable not only criminally but also in an action for treble damages by the person aggrieved. The appellant contends that the law, although covering a situation similar to the one at bar was not intended to cover a salaried officer, who could not in any way gain personally by the exaction of the fee, and that the defend-, ant here is a salaried officer and any fee that he may have demanded in the case at bar would have gone to the city of New York. Appellant also points out that the statute is penal and clearly intended to pi jvide a. punishment for extortion on the part of a public officer, and surely must have been intended only for cases where the officer sought to profit by the illegal exaction' of a fee, and that where an officer with no hope of personal profit has acted in good faith, without personal' motives and in the firm conviction that the law required him to collect the fee as demanded, and that perhaps he might be liable for not collecting the fee,, that to such a case the law was not intended to apply.

A careful review of the statutes, briefs and cases, cited there, seems to point to the conclusion that the. provisions of section 67 of the Public Officers Law are mandatory; that the statute does not distinguish between fee and salaried officers and leaves no discretion with the public officer designated, nor involves any question of good faith and intention. Furthermore the statute, in addition to its penal nature, provides for a liability to the person aggrieved with the purpose, no doubt, that he may recoup himself threefold for the' damages he may actually have suffered by reason of the illegal act. The punishment and the liability seem to be absolute, and in nowise limited or' restrained. There seems no way to avoid the conclusion .that the ' punishment and liability follow the offense as a matter of course, and are not dependent upon any other consideration. Had the statute the limitation claimed by appellant, or if a fair interpretation justified same, surely some provision would have been inserted therein for the recovery of fees, or moneys, demanded or collected illegally by public officers through mistake of law, in good faith and without willful intent to extort. The case of Hatch v. Mann, 15 Wend. 44, cited by the appellant, indicates that, from the inception of the law upon the subject matter in question, the legislature, following the common law, did not intend or attempt to draw any distinction between fee and salaried officers.

Maddox and Clark, JJ., concur.

Judgments affirmed, with costs.  