
    The Board of Supervisors of Erie County, Resp’t, v. Henry R. Jones, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed, June 23, 1888.)
    
    1. Official salary—Unearned is not property—Is subject to change.
    Unearned salary or compensation of a public officer is in no sense property, and it may be changed at any time during his term when the legislative power in that respect is unrestricted by the Constitution.
    
      '% County treasurers of Erie county—Compensation of—Laws 1877, chap. 436, Laws 1880, chap. 580, Laws 1881—Fees of.
    The act in relation to county treasurers, Laws 1877, chap. 436, and Laws 1880, chap. 580, excepting Erie county from the operation of that law, and the Laws of 1881, passed in May and June, relative to the compensation of county treasurers in that county, may be construed together in determining whether or not such officer elected in the month of November, of the year 1881, is entitled to the fees received in his official capacity. Held, that such officer was a salaried officer, and not entitled to such fees, and that the latter were the property of the county.
    Appeal by the defendant from the judgment entered against him upon decision of the court at Erie special term.
    
      George J. Sicard, for appl’t; C. F. Tabor, for resp’t.
   Bradley, J.

The action was brought to recover moneys .amounting to upwards of $9,000, collected and received by the defendant for fees and commissions as treasurer of the county in the years of 1882 and 1883, which it is alleged he wrongfully retains, and refuses to pay over to the county.

The question therefore is whether the treasurer or the county was entitled to the fees and commissions which came to him as such; and this depends upon the statute by which the rights of the parties were governed in that respect.

Prior to the “ act in relation to county treasurers” (Laws of 1877, chap. 436), the treasurer of Erie county was entitled to receive pursuant to statute such fees and commissions to his own use. By that act it was provided that every county treasurer thereafter elected or appointed should receive as -compensation an annual salary, to be fixed by the board of supervisors, and that he should receive to his own use no fees or other compensation for his services except in proceedings for sale of lands for unpaid taxes. Id., § o.

That act embraced within its provisions the county of Erie; :but by laws of 1880, chapter 580, that county was excluded from the operation of the act of 1877, which had the effect to restore the right of the treasurer to fees as -compensation for services pursuant to former statutes. In Hay, 1881, an act was passed to take effect the first day of January, 1882, which restored the application of the provisions of the act of 1877 to the county. Laws 1881, chap. 411. This was followed by an act passed in June of the same year, and taking effect at the time of its passage, providing that every county treasurer thereafter elected or appointed in Erie county should receive as compensation for his services an annual salary not less than $5,000, to be "fixed by the board of supervisors before he should enter upon the duties of his office. Pursuant to that act, such board, November 2, 1881, duly fixed the annual salary of the defendant as county treasurer at the sum of $5,000. And at the annual election on the eighth day of November ■of that year the defendant was elected as county treasurer for the full term of three years from the first day of January following. And that salary was paid to him for each of such three years.

It is contended that as the operation of the act of 1877 was not applicable to the county of Erie at the time of the defendant’s election, and did not become operative there until the first day of January following, his compensation was not restricted by it, and that his right to the appropriation of fees under prior statutes continued. The question depends wholly upon the construction of the statutes, because no vested right in respect to compensation was derived by the defendant from the situation represented by them in that respect at the time of his election.

Unearned salary or compensation of a public officer is in. no sense property, and it may be changed at any time during his term when the legislative power in that respect is unrestricted by the constitution. Conner v. The Mayor, 5 N. Y., 285; McVeany v The Mayor, 80 id., 185; Butler v. Pennsylvania, 10 How. (U. S.), 402. It is,however, urged by the learned counsel for the defendant that as the act of May, 1881, restoring the provisions of that of 1877 to the county, did not take effect until January following, the latter act was not made applicable to the defendant’s term of office, because' its provisions upon the subject in question relate only to county treasurers thereafter elected. Section. 5. It is true that the provision of that section, that, “ every county treasurer hereafter elected or appointed shall receive as compensation for his services an annual salary,” etc., did not become applicable to the county until the 1st day of January, 1882, and the term “hereafter” therein used, as applied to such county, had relation to a treasurer elected after that day, and by a subsequent provision of the same section, to such officer whose salary was fixed at least six months before his election. So that without the aid of some further legislation, it is difficult to see how the provisions in question of the act of 1877 could be made applicable to the defendant. Ely v Holton, 15 N. Y., 595; Moore v. Maunsert, 49 id., 332.

But pursuant to the act of June, 1881, the compensation for the defendant’s official services was made a salary. And while that act does not in express terms deny his right to take to his own use, fees of the office, there can be seen no legitimate purpose of the statute other than that the salary contemplated by it was to take, by way of compensation, the place of the fees which before then the treasurer was entitled to have for his services.

. And the application is permitted of the maxim that the expression of one thing is the exclusion of another. In 1880, the act of 1877 was amended by the provision that the act should not be construed as preventing the county treasurer of any county in which he is a salaried officer, from retaining for the benefit of the county, the same compensation allowed by law where he is not a salaried officer, and in such case the comptroller is authorized to allow to the treasurer for the benefit of the county, on state taxes, the compensation allowed by law.

. These several statutes in pari materia construed together as they may be, quite clearly show that the legislative intent was to make the treasurer elected in Erie county in 1881, a salaried officer, and. render the provisions of the act of 1877 applicable to him. And while, by the act of May, of 1881, the county would be brought within that act on. the first of January following, it was apparent that the provisions of its section five were such that the treasurer elected the November previous could not be made a salaried officer. Thereupon the act of June was passed to obviate that difficulty, and both together restored the application to his county of the act of 1877, simultaneously with the comméncement of his term of office, and permitted him to become a salaried officer.

The evident purpose of the act of June, 1881, was to overcome such obstruction and qualify in that respect the provisions of section five before referred to. And, although that may not be the strict construction of the language used to accomplish such purpose, the legislative intent in that respect must govern. It is quite apparent, from the provisions of the several acts before mentioned, that the design of the legislature was that the treasurer, when he became a salaried officer, should receive, to his own use, no other compensation not within the exception before mentioned, but that the then.existing statutes, giving fees and commissions to such treasurer, should remain operative for the benefit of the county, and that the treasurer should receive them in its behalf and account to the county for them. And so far, and for that purpose only, the effect of those statutes was qualified. The same remark is applicable to the provisions of section 3321 of the Code of Civil Procedure. And embraced within this proposition are the provisions for compensation to the treasurer for receiving and paying over the State tax moneys and the fees allowed for that as well as other moneys by him received by way of fees and commissions not within the exception expressly made in the act of 1877. For all this the salary is intended as a substitute-by way of compensation to the county treasurer. In re N. Y. C. H. R. R. R. Co., 7 Abb. N. C., 408.

The judgment should, be affirmed.

Haight and Dwight, JJ., concur.  