
    In the Matter of the Application of James Kane for a Peremptory Writ of Mandamus, Respondent, v. George B. McClellan, as Mayor of the City of New York, and Others, Composing the Board, of Estimate and Apportionment of the City of New York, Appellants.
    Second Department,
    December 29, 1906.
    City of New York — reimbursement of official for successful defense of proceedings to remove him from office — statute allowing same constitutional — mandamus to compel audit of such expenses.
    Section 231" of the charter of the city of Greater New York, as amended by"' chapter 466 Of the Laws of 1901, which provides in substance that the board of estimate and apportionment shall audit and allow reasonable costs, counsel fees and expenses of certain city officers incurred in defending proceedings to remove them from office or in defending criminal prosecutions on a charge of official misconduct, etc., is not unconstitutional in so far as it is not retroactive.
    A commissioner of sewers in said city, who, since the passage of said act, has expended moneys in the successful defense-of such criminal charge, is entitled to|a peremptory mandamus ordering the audit of his reasonable expenses.
    ■ Appeal by’the defendants, George B. McClellan,, as mayor of the "city of New York,'and others, composing the board of estimate and apportionment of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the l'lth day of October, 1905, granting the petitioner’s motion for a peremptory writ 'of mandamus.
    
      
      James D. Bell [P. E. Callahan, and John J. Delany with him on the brief], for the appellants.
    
      William J. Carr, for the respondent.
   Willard Bartlett, J.:

From January 1, 1898, to December 31, 1901, the petitioner, James Kane, was the commissioner of sewers of the city of New Yorb. During his term of office a criminal action was instituted against him upon an indictment for official malfeasance for having violated section 1551 of the Greater New York charter (Laws of 1897, chap. 378). The petitioner was successful in his defense, it'being determined by the Trial Term [of the Supreme Court in Kings county, by the Appellate Division in the second department (People v. kane, 43 App. Div. 472) and by the Court of Appeals (161 N. Y. 380) that the facts alleged in the indictment did not constitute a crime or a violation of the said section of the charter. In the course of his defense the petitioner incurred and paid costs, counsel fees and expenses, the reasonable amount of which he alleges to have been $3,500. He subsequently requested the board of estimate and apportionment of the city of New York to audit and allow to him the reasonable costs, counsel fees and expenses paid and incurred by him as aforesaid; but the said board refused to act in the premises on the ground that section 231 of the Greater New York charter, upon which the petitioner’s claim was based, was unconstitutional and void. The petitioner thereupon instituted the present _ proceeding to obtain a peremptory writ of mandamus, demanding the board of estimate and apportionment to consider and determine his claim and audit and allow his reasonable costs, counsel fees and expenses paid and incurred as aforesaid. The application was granted, and from the final order granting the same the members of the board of estimate and apportionment have taken this appeal.

Section 231 of the Greater New York charter (as amd. by Laws of 1901, chap. 466), upon which the petitioner’s claim is based, reads as. follows: “ The board of estimate and apportionment is hereby authorized to audit and allow, as chargtes against the city, the reasonable costs, counsel fees and expenses paid or incurred, or which shall hereafter ' be paid or incurred by any commissioner, city magistrate or police justice who shall have been a successful party in any proceedings or trial to remove him from office, of who shall bring or defend any action or proceeding in which the question as to his title to office is in any way presented,' or involved, or in which it is sought to convict him, or to review or prohibit any such removal or to obtain possession of his office, or by any commissioner for the proper presentation and justification of his pfficial conduct before any body or tribunal lawfully investigating the same, and not officially recommending .his removal from office. The board of estimate and apportionment and the board of aldermen are hereby .authorized and directed to cause to be included in the budget for the year following such audit, an amount sufficient to pay the revenue bonds directed to be issued by the said comptroller pursuant to section one hundred and eighty-eight, of this act, with all interest dfle or to become due thereon.”

In Matter of Jensen (44 App. Div. 509) this court was called upon to consider the validity of a. statute providing for the payment of' a city, county or State officer out of the city, county or -State < treasury the reasonable counsel fees and expenses incurred by him in successfully defending a proceeding to remove him from office or a prosecution for'a crime alleged to have been committed in the performance of his official' duties, where the statute was wholly retrospective in -its operation, the purpose of the legislation being merely to sanction the payment of money out of the public treasury on account of occurrences wholly past before the legislation took effect. The statute there under consideration was, unanimously .condemned by this court as unconstitutional. In that case the duty fell to ine to write the opinion of the court, which received the concurrence of my associates, and the following extract from the opinion will show that the condemnation of the statute there adjudged to be unconstitutional rested chiefly on the retrospective character of the legislation, and that the court did not decide and was careful .not to intimate that prospective legislation, having a like purpose in view, might not be valid: "A different question would arise in' considering legislation for the reimbursement of innocent parties in criminal prosecutions, if the legislation were wholly prospective in its operation, instead of relating (as does the act of 1899 ); only to past cases where the expenses were incurred without any assurance that the State would make them good. The purpose that we have to deal with here, and which seems ■ to me to lack the public character necessary to sustain valid taxation, is a purpose to pay money on account of occurrences wholly past before the legislation took effect, which imposed no legal or moral obligation on the State at the time they happened, and from which the State received no conceivable benefit. It may be that purely ‘prospective legislation announcing the intention of the State to pay such expenses incurred in future cases would be deemed expressive of a public purpose,, and that the assurance thus given might be regarded as creating such an obligation as to relieve the subsequent payment from the objection that it was a mere gratuity. These questions, however, we are not called upon to decide now.”

The decisions bearing upon the general subject presented by. this appeal were so fully considered and reviewed in the Jensen case that it is quite unnecessary to discuss them again here. For the disposition of the present appeal it is sufficient simply to state our reasons for the conclusion that a statutory enactment providing in advance for the reimbursement to a public officer of the reasonable expenses actually incurred by him in defending himself against a criminal prosecution based upon a charge of official misconduct is within the constitutional power of the Legislature, and not forbidr den by any express or implied prohibition contained in the fundamental law of the State. The conditional promise to reimburse contained in such statute may be regarded as a part of the compensation which the State, city or town, as the case may be, stipulates that the officer shall receive in return for the. services to be by him rendered. In this sense, the purpose to be subserved is a public purpose, just as is the purpose in view in providing a specified salary — that is to say, the procurement of suitable and qualified persons to discharge the duties of the office. It is quite conceivable that a man who would otherwise hesitate or refuse to under- > take the duties of a public office for the pecuniary compensation attached thereto by law, might be most willing to do so if assured in advance that he would not himself be compelled to pay out of his own pocket for the successful refutation before a criminal court of an unjust accusation affecting his official probity and conduct; and the assurance against such a liability, which is virtually provided by the charter provision under consideration here; might well operate with many persons as an inducement to enter the public service. In this view such legislation seems promotive of the general welfare; and in no sense objectionable. For- this reason, irrespective of any other arguments which might be advanced in support of the validity of this legislation, we regard it as constitutional, and, therefore; conclude" that -the order appealed from should be affirmed.- '

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      Chap. 700.— [Rep.
     