
    The People, ex rel. Phineas H. Kingsland, vs. John J. Bradley, County Treasurer of the county of New York.
    Although an act of the legislature be unconstitutional, the legislature may, by a subsequent act, direct the expenses incurred by such legislation to be paid.
    Accordingly, on appeal from an order denying an application for a mandamus to compel the county treasurer of New York to pay for the services of the relator as one of the commissioners of records; it was held that, even if it were conceded that the original act of April 16, 1866, appointing the commissioners of records, was unconstitutional, and that the acting of such commissioners might have been prevented; still, “they having performed the duties imposed upon them, and the legislature having, by repeated appropriations of money, since, for the payment of their indebtedness, ratified such acts, and provided therefor, that under such circumstances, the payment of the just claims which the legislature had thus ordered to be paid could not be defeated, by setting up the invalidity of the act under which the original appointment was made.
    Assuming the act of 1855 to he unconstitutional, the expenses incurred under it may be provided for by subsequent legislation. And it appearing that the sum of $100,000 had been raised by tax, of which enough remained to pay this claim, it must he assumed that the sum named was raised by a law duly authorizing it. Per Beady, J.
    APPEAL by the plaintiffs, from an order made at a Special Term, denying a motion for a peremptory mandamus.
    In 1855, a statute, was enacted by the legislature of this State, providing that certain persons named therein should be commissioners of records for the city and county of New York, and should have power to examine into the condition of the records, &c., in the offices of the clerk, register and surrogate of said county, to cause the same to be copied and printed, and do such further acts for the preservation and convenient examination of the same as the public interest should require.
    Said act also provides that the supervisors shall raise by tax the amount required to defray the expense of the commission, which shall be paid by the county treasurer upon the certificate of said commissioners. (Laws of 1855, ch. 407, p. 763.) The commissioners, in 1862, appointed William H. Bell, the assignor of the relator herein, superintendent of printing, at a salary of $2,000 per annum, in which capacity he has continued to claim said salary from that date to the present time. It was alleged in the moving papers, that Mr. Bell had assigned to the relator his claim for salary, at the rate named for the months of June, July and August, 1864; July, August, September, October, November and December, 1865; January and February, 1866, and a balance of $357.75 due and unpaid to him, under and pursuant to a writ of mandamus, issued 23d March, 1864. The bills assigned to Mr. Kingsland, are certified to be correct, by three of the five commissioners, viz., W. C. Wetmore, Geo. P. Nelson and John McCool. It appeared that Mr. Kathan, one of the commissioners died in October, 1868, that Mr. Bnsteed, removed from the State, at some time previous to the making of the certificate attached to the bills. It was alleged, in the affidavit of the relator, that in 1866, the board of supervisors of the county of Kew York, duly appropriated the sum of $100,000, as appears by the printed proceedings of said board of supervisors for the year 1866, which said appropriation was for the payment of expenses and indebtedness incurred by said commissioners of records ; that said sum of $100,000 was raised by tax, and that there remains in the treasury a balance thereof, more than sufficient to pay the claim of the relator. It was also alleged that the relator had presented the original bills of said Bell and the original certificates of said commissioners, and original assignments to him, to John J. Bradley, county treasurer of the county of Kew York, and Andrew H. Green, comptroller of the city of Kew York, and demanded from each payment of thé same, which said demand was refused.
    The motion at Special Term was for an order that a peremptory mandamus issue, directed to John J. Bradley, county treasurer of the county of Kew York, commanding said treasurer to pay to Phineas H. Kingsland, the relator, the sum of $3,208.78, with interest thereon from the 15th of December, 1871, or for such other or further relief, &c.
    The motion was denied, and the relator appealed.
    
      Develin, Miller & Trull, for the relator.
    I. The adjudication by the Supreme Court in the proceeding by Bell v. The Comptroller, whereby that officer was ordered to pay, and under which he did pay Bell $833, part of his salary, makes this whole subject a res adjudicaba, and the respondent has no defence. (Castle v. Noyes, 14 N. Y. 329. The People v. Supervisors of New York, 11 Abb. 114.) 1. The comptroller in the proceeding mentioned, was proceeded against, and acted, in paying the sum under the order, as a county officer, and representative of the county. The expenses of the record commissioner, were to be paid by the county treasurer. (Laws of 1855, ch. 407, § 2.) 3. This is the same matter as the former proceeding, viz. the salary of Bell as superintendent of the printing of the indices in the register’s office. The second section of the act of 1855, also provides that “the necessary expenses incurred by them” (those commissioners) “ shall be paid by the county treasurer, upon the certificate of said commissioners, and the supervisors of said city and county are hereby authorized to raise by tax the amount required to defray the same.”
    II. The claim of the counsel for the respondent, that the act of 1855 is unconstitutional, cannot be sustained. 1. The claim of the respondent is based upon the second section of the tenth article of the constitution of this State. The act in question does not violate that provision of the constitution, for the reason that at the date of its passage, and at the date of the adoption of the constitutional provision, there were no such officers known to the law as commissioners of records for the city and county of New York. The duties imposed upon the commissioners of records, are entirely independent and distinct from those imposed upon or performed by the register of the county of New York. The act of 1855, in effect, constitutes the commissioners of records an examining board, and does not in any manner interfere with or conflict with the duties and powers of the register of the county of New York, but, on the contrary, confers upon the register equal powers with that possessed by the commissioners, so far as the records of his office are concerned, by making him, ex officio, a commissioner. 3. The claim of. the counsel for the respondent, that the legislature had no power to appoint the commissioners to office, but only had power to direct and authorize some other body or person to make such appointment, is untenable. The constitutional provision is, “all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct.” The only reasonable interpretation of this provision is, that the constitution leaves it to the legislature to decide, as to whether offices created after its adoption should be filled by election or by appointment. The constitustitution is silent as to the manner of appointment; it contains no provision prohibiting the legislature from making appointment, in case it decides that the office shall not be filled by election, but leaves the entire matter to the legislative discretion. (The People v. Draper, 15 N. Y. 532, 539. The People v. Pinckney, 32 id. 377.) It was upon this construction, that the legislature acted in the appointment of the commissioners of Central Park, (Laws of 1857, ch. 771, § 3,) and indeed have acted, ever since the adoption of the constitution of 1846.
    III. The court below erred in holding that the objection to the certificate of the commissioners was well taken. 1. The court below based its decision, in this regard, upon the rule that the signature of the majority is only sufficient when a meeting of all had been duly convened. This rule, however, is not absolute, but is subject to the reasonable qualification that if all are notified a majority may act. The presumption is, that the action of the commissioners in giving this certificate was legal and regular. (Downing v. Rugar, 21 Wend. 178. Doughty v. Hope, 3 Denio, 249; affirmed 1 Comst. 79. McCoy v. Curtice, 9 Wend. 17.) So strong is this presumption in favor of the performance of official duty, that it always prevails unless the contrary is shown by calling those whose testimony, from their relation to the transaction, can put a direct negative upon it. (Downing v. Rugar, supra. Williams v. East India Co., 3 East, 192.) No proof, of the character required by these authorities, is offered, rebutting the legal presumption in favor of the performance of official duty on the part of the commissioners. 2. It will be seen by the opinion of the court below that the main ground upon which the decision that the certificates were insufficient was based, was the death of Mr. Nathan. In this the court erred, in failing to notice the distinction which has always obtained in the case of a body of public officers charged with the performance of a public duty. That distinction is,, that when a public duty is entrusted to a body of public'officers, the death or absence of one or more of them number does not disqualify the others to act if there remain a majority of the entire number to discharge the public duty. This distinction was recognized and applied in the following cases : (Downing v. Rugar, 21 Wend. 178. Gildersleeve v. Board of Education, 17 Abb. 211.) In the latter case, Judge Daly states the rule as foEows : “If the public duty is entrusted to three and one dies, or is - disquaEfied, I doubt if the others can act alone, as in the event of division of opinion, there can be no decision; but if there are more than three remaining, the majority can decide, and if aE qualified to act are notified, an act done by the majority of them is, in my judgment, vaEd.” In the case at bar the commissioners are five in number. A majority of the commission signed the certificate. The case thus comes clearly within the rule as stated and appEed in the case of Gildersleeve, supra.
    
    IV. The objection that the relator’s claim has never been audited does not apply to this case. The statute requiring audit only appEes to moneys expended by authority of the board of supervisors. The moneys in question are not so expended, but solely upon the authority of the commissioners of records.
    AE the objections urged against this appEcation are purely technical, and ought not to receive the slightest encouragement.
    
      
      Richard O’Gorman, for the respondents.
    I. The act, chapter 407, laws of 1855, is repugnant to section 2 of article 10 of the constitution of this State-That article provides substantially, that all county, city, town or village officers, whose election or appointment is not provided for in the constitution, shall be elected by the electors of said county, &c., or of some division thereof, or appointed by such authority of said county, &c., as the legislature shall designate for that purpose. That all other officers, whose election or appointment is not provided for by this constitution, and all officers whose offices shall hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct. The commissioners named in the act are local officers, appointed in and for the city and county of ISTew York. They are not officers of a new political division of the State, as were the commissioners appointed under the metropolitan police act; consequent]y the principle upon which that act was sustained will not sustain the act under discussion. (The People v. Draper, 15 N. Y. 532.) The commissioners named in the act are directed to perform duties which theretofore had been performed by the surrogate, county clerk and register in their respective offices. The act provides facilities for more efficient and careful performance of those duties ; but the general character of the duties is precisely the same as had been theretofore performed by the register, county clerk and surrogate, in their respective offices, viz., to preserve in efficient condition the records of their offices and to keep them in convenient form and manner for the public use. The duties of the commissioners being then such as had been theretofore performed by the old officers named, who existed before the constitution of 1846, it follows that the act under discussion did not create a new office, unknown before the constitution, and cannot be sustained on the principle enunciated in The People v. Pinckney, (32 N. Y. 377,) where the metropolitan fire district law was sustained, on the ground that the offices thereby created were new; that the duties performed by the fire commissioners had not theretofore been performed by any officer known to the law. The act in question gives the commissioners named enlarged facilities for performing the portion of the duties of the register, county clerk and surrogate which it attempts to vest in them. But such enlargement of facilities or perfection of details, or even a colorable modification of duties, will not make their offices new, or take the case out of the provision of the constitution cited. (The People v. Draper, 15 N. Y. 540. Warner v. The People, 2 Denio, 272.) In The People v. Raymond, (37 N. Y. 430,) an act providing for the appointment of commissioners of taxes by the Governor was adjudged repugnant to the constitutional provision cited, because, although the name of the office was new, the same essential duties had been theretofore performed by ward assessors, local officers existing previous to the constitution of 1846. The office of commissioner of taxes was the same office, and therefore subject to the constitutional regulation as to election or appointment. The commissioners of records named in this act, perform with enlarged facilities, given by the act, duties which, at the time of the adoption of the constitution of 1846, were performed by- local officers. They are, therefore, not new officers; they are local officers, and therefore within the constitutional provision which requires that such officers must be elected by the people or appointed by local authority.
    II. The bills of the relator’s assignor are not properly certified, so as to entitle the relator to payment from the county treasurer. The statute provides that “the necessary expenses incurred by them shah be paid b,y the county treasurer .upon the certificate of said commissioners.” Five commissioners are empowered to certify to the necessity of the expense incurred for Mr. Bell’s salary. It appears that three of the five commissioners, only, have certified. This certification might be sufficient, if made by the majority, upon a meeting of all the persons- empowered to certify. (2 R. S. 575, Edm. ed.) But that such meeting of all was not had, is evident from the fact that Mr. Nathan, one of the commissioners, died in 1863, before the date, of the earliest certificate shown. The certificate is made necessary by the statute, before the county treasurer can be compelled to pay. The giving of such certificate is an act requiring meeting and concurrent action of the commissioners, as much as the original employment of Mr. Bell, or any other act of the body. (20 N. Y. 173. 12 id. 190. 11 id. 571.)
    III. A mandamus will not lie to compel the payment of any claim, from the county treasury, which has not been first audited by the auditor. In 1857, by chapter 590, the legislature placed an additional check upon expenditures from the county treasury, by providing that all money drawn therefrom by authority of the board of supervisors should be upon vouchers for the expenditure thereof, examined and allowed by the auditor, and approved by the comptroller. The act of 1855, so far as its provisions as to payment by the county treasurer are inconsistent with the act of 1857, is controlled by the latter enactment. Therefore, the funds which the" act of 1855 directs the supervisors to raise and disburse, to meet the expenditure of the commissioners, can be paid out only in accordance with the provisions of the act of 1857. (The People v. Flagg, 15 How. 553.)
    IV. As to the balance of $357.75 remaining unpaid under the former judgment, in 1864, it is submitted that the remedy of the relator is to enforce that judgment by an alias writ, if necessary. He is riot entitled to make it the basis of a new proceeding.
    V. The questions raised in this controversy are not “res adjudieataP 1. All the former controversies concerning claims growing out of the proceedings of the commissioners of records, have arisen under other statutes providing special funds to meet the claims, and the question as to the constitutionality of the act under discussion could not be entertained. (Commissioners of Records v. Supervisors, 11 Abb. 114. The People v. Supervisors, 10 id. 233. 11 id 124. 3 Keyes, 292.) 3. The judgment of March 33, 1864, upon its face shows that Mr. Bell’s salary was not the subject of the adjudication.
   Ingraham, P. J.

If it be conceded that the original act, of 1855, appointing the commissioners of records, was unconstitutional, and that the acting of such commissioners might have been prevented, still they have performed the duties imposed upon them, and the legislature, by repeated appropriations of money, since, for the payment of their indebtedness, have ratified such acts, and provided therefor. Under such circumstances, I do not think that the payment of the just claims which the legislature have thus ordered to be paid can be defeated by setting up the invalidity of the act under which the original appointment was made. There can be no doubt but that, although the original act was unconstitutional,. the legislature may, by a subsequent act, direct the expenses incurred by such legislation to be paid. This they have done in this case.

The case of The People v. Raymond, (37 N. Y. 428,) was a proceeding by quo warranto to try the title to the office, and does not meet this case.

The objection that all of the commissioners have not certified the account is not well taken. The certificate is signed by all who can act. Mr. ISTathan was dead, when the certificate was given. Mr. Busteed had removed from the State, and such removal rendered the office he held vacant. (1 R. S. 413, § 40.) There remained, then," but three commissioners in office, and these all signed the certificate. In The People v. The Board of Supervisors, (10 AM. 233,) it was held that the signatures of a majority of the commissioners was sufficient, but that all must be consulted. As all have signed the certificate, there is no ground upon which we could say that any of those who signed it were not consulted as to its contents. The presumption is the other way.

[First Department, General Term, at New York,

November 4, 1872

Ingraham and Brady, Justices.]

The objection that the account has not been audited under the act of 1857, chapter 590, is answered by the fact that the money is not drawn by authority of the board of supervisors, but by the certificate of the commissioners, under an express statutory provision. Ko auditing is therefore necessary.

The papers show that the account is fairly due; that money has been appropriated for its payment; and that sufficient of that appropriation remains unexpended to pay the account. These facts are not controverted on the part of the respondent, and there is no good reason shown why the claim should not be paid.

The mandamus should issue, and the order appealed from be reversed.

Brady, J. I concur with the presiding justice, upon the ground that, assuming the act of 1855, to which he refers, to be unconstitutional, the expenses incurred in proceedings under it may be provided for by subsequent legislation. On that subject, it is alleged and not denied, that the sum of 8100,000 was raised by tax, of which sufficient remains to pay this claim. And it must be assumed that the sum named was raised by law duly authorizing it. If it were not for this element, I should dissent.

Order reversed.  