
    Nelson W. Porter and Others, Appellants, Impleaded with Charles H. Moody and Others, Plaintiffs, v. Ernest T. Fletcher and Others, Respondents.
    Third Department,
    November 22, 1912.
    •County —Highway Law, section 30 —power of supervisors to provide for increased expenses of superintendent of highways — constitutional law — increased salary of public officers—purchase of automobile as aid to supervision of highways under construction.
    Under section 30 of the Highway Law, as amended in 1910, the board of supervisors, being authorized to fix the salary of the county superintendent of highways and to provide for the payment of his expenses, has implied power to increase the salary of such superintendent and to provide for additional expenses where there is an unusual increase in the duties to be performed by him.
    Section 28 of article 3 of the State Constitution, prohibiting boards of supervisors from granting extra compensation to public officers, etc., merely prohibits an increase of compensation for services already rendered, that being in the nature of a gratuity. Said provision does not forbid an increase in the salary of a superintendent of highways or of the sum allowed for his expenses where circumstances justify the increase.
    Hence, where chapter 137 of the Laws of 1911, providing for the construction and maintenance of a road system in the county of Franklin, largely increased the duties of the county superintendent in overseeing many miles of road under construction, the board of supervisors were justified in authorizing the purchase of an automobile for use by him and by the committee on highways.
    The purchase of such automobile for use by the superintendent of highways being justified, it is immaterial that the use thereof by the committee on highways and by the county road committee was also authorized.
    Kellogg and Betts, JJ., dissented.
    Appeal by the plaintiffs, Nelson W. Porter and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 8th day of May, 1912, upon the decision of the court, rendered after a trial before the court without a jury at the Franklin Trial Term, dismissing the complaint.
    
      Moore & Cooney and Cantwell & Cantwell [John M. Cantwell of'counsel], for the appellants,
    
      George J. Moore, for the respondents.
   Smith, P. J.:

This action is brought against the board of supervisors of the county of Franklin to restrain them from auditing and paying a bill presented against the county for the sum of about $1,800 for the purchase of an automobile for use by the county superintendent of highways in his duties as such county superintendent, and the committee on highways and county superintendent’s affairs, and the county road committee, the latter committee having been appointed pursuant to chapter 137 of the Laws of 1911. This act provided for the construction and maintenance of a county road system in said county of Franklin, and authorized the board of supervisors thereof to issue bonds 'of said county in the aggregate amount of $500,000 for such system. The construction under this system comprised many miles of highways, all of which were under the charge of the county superintendent of highways, as well as under the charge of the county road committee provided for in the act. In said county there were 1,364 miles of highways already under the supervision of the county superintendent of highways and the committee on highways of the board of supervisors. The institution of this system of county highways authorized by the act in question very largely increased the work and responsibility of the county superintendent of highways, and it might well be held that for better efficiency in service of the said county superintendent, as well as of the said county road committee, the purchase of an automobile for their use was in the interest of economy, for the procurement of more thorough inspection of the building of the new roads contemplated by the act in question. The plaintiff bases his cause of action, first, upon the want of statutory power to purchase this automobile for the purposes for which it was purchased; and, secondly, upon the want of constitutional power.

By section 30 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), as amended by chapter 567 of the Laws of 1910, the board of supervisors were authorized to fix the salary of the county superintendent of highways and to provide for the payment of his expenses. Prior thereto, and in 1909, this county superintendent of highways was appointed for the term of four years, at a salary of $1,500, with a provision, that such salary should include all expenses. With the power of the hoard of supervisors to fix the salary, however, there would seem to be implied the further power to increase that salary at least in case of any unusual increase in the duties to be performed. The board of supervisors would certainly have the power to accept his resignation and reappoint him under a new contract, by which he should have a further salary or additional expenses. If this be so, it would seem to follow that without the subterfuge of a resignation and reappointment the board might increase his salary and provide for additional expenses as circumstances might arise justifying the same. (See Truesdale v. City of Rochester, 33 Hun, 574.) In fact, in the fall of 1909,. after his appointment, the salary was increased from $1,500 to $2,000; but this was prior to the institution of this county road system, under which system his duties were so materially increased.

By section 28 of article 3 of the Constitution it is provided: The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.” It is contended that after having fixed his salary, which was made to include all his expenses, the providing of an automobile-to the county superintendent of highways, thereby lessening his expenses, would be an increase of compensation, prohibited by this provision of the Constitution. In Truesdale v. City of Rochester (33 Hun, 574) it seems to have been held that the increase of the salary for the remainder of the term does not violate this provision as contained in the former Constitution (Const. [1874] art. 3, § 24). It is also held in People ex rel. Masterson v. Gallup (65 How. Pr. 108) that a resolution of a board of supervisors giving a clerk to the coroners of the county does not violate this provision as contained in the former Constitution (Const. [1874] art. 3, § 24). The evil sought to be remedied by this constitutional provision seems to be an increase of compensation for services theretofore rendered, which would be in the nature of a gratuity. So it has been held that the granting of pensions to teachers who had retired before the granting of the pensions was within the prohibition of this provision of the Constitution of 1894. (See Matter of Mahon v. Board of Education, 171 N. Y. 263.) From these authorities it is clear that the provision of the Constitution referred to can form no basis for this action.

It is argued that if the board of supervisors were authorized to furnish an automobile for the superintendent of highways they would be authorized to furnish one for the county clerk, or for the sheriff, and for other county officers. This does not follow, however, because the salary of the county superintendent of highways is determined by the board of supervisors itself. This board might increase the salary of this man to any amount that might be deemed proper, being answerable only to their constituents for any abuse of this power.. I do not see how this power to provide for expenses is any more liable to be abused than the power to fix the salary at a larger sum, and, therefore, the objection of expediency cannot be raised. I say the objection of expediency because, of course, if the supervisors had power the question of expediency is not here; but I speak of that question as béaring upon the interpretation of the powers of the supervisors. I have thus far considered this question purely as though the automobile were furnished for the assistance of the county superintendent of highways. It seems to have been furnished, however, also for this county road committee, as well as for the committee on highways of the board of supervisors. The main use, however, was by the county superintendent of highways, but if the purchase of the automobile for him can be justified, as it seems to me it can, it can harm nothing that its use was also given to any committee.

The judgment should be affirmed, with costs.

All concurred, except Kellogg and Betts, JJ., dissenting.

Judgment affirmed, with costs.  