
    Jasper W. Gilbert, Resp’t, v. The Board of Supervisors of the County of Kings, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    Justice of supreme court—Abridgement of term—Compensation.
    The term “ compensation,” as used in article 6, § 18, of the constitution does not include the allowance made by the supervisors of Kings county to justices of the supreme court residing in that county, under chapter 831, Laws 1866, for assisting the commissioners of jurors, and a justice residing in such county whose term has been abridged by reason of age is not entitled to such allowance for the remainder of the term to which he was-elected.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.
    
      John B. Meyenborg, for app’lt; Calvin Frost, for resp’t.
    
      
       Reversing 46 St. Rep., 143.
    
   O’Brien, J.

By an amendment of § 13, art. 6, of the state constitution, which went into effect on the 1st of January, 1881, the following words were ¿dded to the section : “ The compensation, of every judge of the court of appeals, and every justice of the supreme court, whose term of office shall be abridged pursuant to-this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected.” The plaintiff was elected a justice of the supreme court in the county of Kings for a term of fourteen years, commencing January 1, 1874, and ending December 31, 1887. But this term was abridged five years, on and after December 31, 1882, by reason of the fact that during the year-last mentioned he became seventy years of age. During the whole period of the term for which plaintiff was-elected he has-been paid the salary of a justice of the supreme court, $6,000 annually, besides $1,200 per year, being the allowance given in lieu of all personal expenses by chapter 541 of Laws of 1872. These payments were properly made, as is admitted under the decisions of this court. The People ex rel. Bockes v. Wemple, 115 N. Y., 302 ; 26 St. Rep., 330 ; The People ex rel. Gilbert v. Wemple, 125 N. Y., 485; 36 St. Rep., 20. At the time that the plaintiff was retired from office by reason of his advanced age, under the provisions of the constitution, he was in receipt of another sum of money, namely, the sum of $6,000 per annum, under a resolution of the board of supervisors of the county of Kings, adopted March 8, 1871, under the authority of § 9, chapter 821, of the Laws of 1866, which amended chapter 322 of the Laws of 1858, entitled “An act in relation to jurors, and to the appointment and the duties of a commissioner of jurors, in the county of Kings.” These statutes require the justices of the supreme court, or any two of them, with the other officers named in the act, to attend at the office of the commissioner of jurors to witness and assist in the drawing of juries to serve in the various courts of record to be held in the county. The ninth section of the amendatory act of 1866. under which the supervisors fixed the compensation, is as follows: “ The board of supervisors of the county of Kings ■shall allow to the justices, judges and officers of the several courts for the services required of them under this act, and the act hereby amended, such compensation for their services as the said board shall deem reasonable and proper.”

The plaintiff has recovered for the five years after he retired from office, and thus it has been held by the courts below that the provision of the constitution providing that the compensation for judges whose terms are abridged by reason of age shall continue daring the term for which they were elected, not only embraces the annual salary and allowance for expenses, but also carries along with it any sum of money payable by a locality for special and local services performed by the incumbent of the office for the time being, as a member of a local board administrative or ministerial in its character. The question is, wliat did the framers of the amendment to the constitution mean when they enacted that the compensation of the retiring judge should be continued although he became disqualified to serve after reaching the age of seventy. The word compensation is used in both §§ 13 and 14 of the article. In the latter section it is provided that The judges and justices hereinbefore mentioned shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms.” The compensation which was to be continued is obviously the same compensation mentioned in the next section and which is to be established by law, and not diminished during the official term of the incumbent. The constitution in using the words “ compensation to be established by law ” did not contemplate a resolution of a municipal body fixing the compensation of a judge for local services as member of a board which could as well be performed by any other officer. When the amendment of 1880 was adopted the word compensation had been in the judiciary article for ten years, and was understood to mean the salary of the judge as such and the allowance for expenses, and it is quite unreasonable to suppose that either the framers of the amendment or the people in adopting it had in mind the allowance which a municipality or board might, in its discretion, award to a judge for focal services as member of a board for drawing jurors. Neither the language nor the purpose of the amendment would justify the conclusion that the retiring judge was secured the payment of such a sum of money for years after he became disqualified to perform the duties by reason of the vacation of his office.

■ It would seem to be a fair test of the question whether the sum of money mentioned in the resolution of the board of supervisors was compensation, within the meaning of the constitution, to inquire whether the sum fixed for attending at the drawing of jurors could have been diminished during the plaintiff’s term of office. If it could have been reduced or abolished altogether, then it is not that compensation which is continued by the constitution during the term for which the plaintiff was elected, for, as-we have seen, that refers to the compensation to be established by law for judicial services and which cannot be diminished during the official term. The statute conferred power upon the board of supervisors to “ allow to the justices, judges and. officers of the-several courts for the services required of them * * * such compensation for their services as the board shall deem reasonable- and proper.” The whole matter of compensation was left to the discretion of the board, and when it passed the resolution awarding the plaintiff six thousand dollars per year, this did not bind any future board and was not permanent. The next board could have reduced it to a nominal sum, and during the last year of the plaintiff’s actual service the board might have abolished the compensation entirely as to him, as he was no longer, within the terms of the statute, qualified to perform the duties for which the compensation was to be paid. The constitution in providing that the compensation of a judge, whose term was abridged by reason of age, should be continued, referred to the sum of money that the retiring judge was in receipt of, when he ^became disqualified, as. his regular stated salary as one of the justices of the supreme court. It did not refer to or include what might be termed extra compensation, which a particular judge was in receipt of, when he became seventy years of age, from a county, for special services to be performed in and for such county and not elsewhere. It cannot be supposed that the people, when the amendment of 1880 was before them for adoption, intended that it should be so construed as to give one judge the statutory salary and allowance for expenses only, and to another judge nearly twice that amount. It was never intended that the amendment providing for the continuation of the compensation of a retiring judge should carry with it compensation by a locality for local services which he could not perform after his retirement and which were not neces.sarily judicial in their nature and character. We think that the sum mentioned in the resolution of the board of supervisors for attending at the drawing of jurors in Kings county was not the-compensation of a justice of the supreme court established by law,- and which could not have been diminished during plaintiff’s official term, but, on the contrary, it was special compensation by a locality for special services and which was subject to change by the body that established it and to be wholly abolished at the end of plaintiff’s actual term of service. The amendatory provision, of the constitution which secured to the plaintiff after his retirement his compensation as a justice of the supreme court, cannot be held to include the sum for which the judgment in this case was rendered.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur.  