
    The People of the State of New York ex rel. Thomas Gagan, Relator, v. Heman M. Purdy and Others, as Members of and Constituting the Board of Supervisors of the County of Rockland, Respondents.
    Second Department,
    June 2, 1916.
    County — expenses of county officer in impeachment proceedings — County Law, section 240, construed — constitutional law.
    Under subdivision 16 of section 240 of the County Law, making the reasonable cost and expense in proceedings before the Governor for the removal of a county officer a county charge, a district attorney who has successfully met the charges against him in a proceeding before the Governor for his removal from office is entitled to charge to the county his expenses for counsel fees and various disbursements incurred in the defense and the supervisors will be required to audit the claims. Said statute, being purely prospective and not retroactive, is constitutional and does not involve a grant of the public moneys of a muneipality in the aid of a private individual.
    Certiorari issued out of the Supreme Court and attested on the 4th day of March, 1916, directed to Hernán M. Purdy and others, constituting the board of supervisors of the county of Eockland, commanding them to certify and return to the office of the clerk of the county of Eockland all and singular their proceedings had in disallowing the claim of the relator against the county.
    
      Abram F. Servin, for the relator.
    
      E. W. Hof stutter, for the respondents.
   Carr, J.:

Charges were filed with the Governor of this State against the relator, alleging official misconduct on his part as district attorney of Eockland county. A commissioner was appointed by the Governor to hear the testimony. The relator appeared by counsel before the commissioner, and, as a result of the hearing of the testimony in prosecution and defense, the charges were dismissed. The purpose of the charges was to procure the removal of the relator from office as district attorney.' The relator presented to the board of supervisors of Eockland county for audit and allowance a claim for his expenses for counsel fee and various disbursements incurred by him in his defense. That claim was rejected by the board of supervisors by a resolution thereof which recited that the claim was rejected, not upon the merits, but upon the ground that it did not constitute a county charge. Subdivision 16 of section 340 of the County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16) designates as “county charges:” “The reasonable costs and expenses in proceedings before the Governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein.” This provision of the County Law is a substantial re-enactment of a provision of the “ supply bill ” of 1874 (Laws of 1874, chap. 333, p. 388). In that statute the Legislature made provision for the compensation and expenses of the counsel who had prosecuted certain charges made to the Governor against the sheriff of Clinton county; likewise for compensation of the county judge of said county, who had investigated said charges as referee upon the designation.of the Governor; and likewise as to the expenses of the sheriff himself, against whom the charges were dismissed finally by the Governor. Immediately after making these provisions, and as a part of the same subject-matter, the statute provided as follows: “Hereafter in all proceedings before the Governor for the removal of any county officer upon charges preferred against him, all the costs and expenses thereof, including those of taking- and printing the testimony therein, shall be a county charge upon such county, and shall be audited and allowed by the board of supervisors of such county and be included in their next annual assessment roll made thereafter, and shall be assessed, levied and collected as other county charges, and paid over to the party or parties entitled thereto by the county treasurer thereof.”

In People ex rel. Benedict v. Supervisors (24 Hun, 413) a claim had been presented to the board of supervisors of Oneida county, by the sheriff of said county, for his expenses in defending himself in certain proceedings taken before the Governor to procure the relator’s removal from office as sheriff. The board of supervisors made a partial audit of the claim. The sheriff obtained a writ of mandamus requiring a complete audit. The proceeding was had under the provisions of the act of 1814, and, while there is no discussion in the opinion of the court whether the act of 1814 did apply to the expenses of a county officer in defending himself against charges made to the Governor to procure his removal from office, it appears to have been assumed by all the parties to the controversy that the act did apply, and the decision of the court proceeded accordingly.

Later, in People ex rel. Benner v. Supervisors of Queens County (39 Hun, 442), the question arose as to whether the statute aforesaid authorized compensation, as a county charge, of an individual who had charge of the prosecution of certain charges before the Governor for the removal from office of the then district attorney of Queens county, and it was held that the statute did authorize the audit and allowance of compensation and proper disbursement to said individual. Barnard, P. J., writing for the court, said: “The intent of that part of chapter 323, Laws of 1874, page 388, upon which the claim herein rests, is manifest from the appropriation which immediately precedes it.”

In People ex rel. Nash v. Board of Supervisors (164 App.. Div. 89) it was held that the reasonable expenses of certain residents of Onondaga county in prosecuting certain charges before the Governor for the removal from office of the sheriff of said county were proper county charges. There the proceeding was based upon the provision of the present County Law, which, as before stated, is but. a re-enactment of the specific provision of the statute of 1874. In the case last cited the Appellate Division (Fourth Department) affirmed upon the opinion of former Judge Vann, who sat as referee in the proceeding. In his opinion the referee said, passim,: “ It is to be observed that the statute does not authorize payment of the reasonable expenses of defending, but only of prosecuting a public officer.” This question, however, was not before the court for decision in that case. The observation was purely obiter. In view of the great distinction of the referee the observation is entitled to careful consideration, particularly so as it relates to the turning point of decision in the case at bar. As the present statutory provision is but a re-enactment of the provision in the statute of 1874, it is not to be considered as if it were an entirely new statute, but as a continuance of the former one. The same interpretation is to be given to it as it was judicially construed or interpreted as it stood originally, unless there be apparent good reason to the contrary. We see no good reason why the statement of Barnard, P. J., in People ex rel. Benner v. Supervisors of Queens County (supra) should not be adopted as sound with regard to the original statute. It seems to us that there is nothing in the language of the statute as it now stands that requires any different interpretation as to the legislative intent. The precise question now before us was considered in Gavin v. Board of Supervisors (93 Mise. Bep. 264) by Chester, J., in a well-considered opinion, where it was held that the section of the present County Law here in question authorized an audit by the board of supervisors of a claim by a county officer for his expenses in defending himself against charges before the Governor for his removal from office. We are of opinion, therefore, that the board of supervisors of Rockland county was in error in rejecting as a matter of law the claim of Mr. Gagan without considering its merits upon the facts. Nor are we impressed by the argument of counsel that if the statute be construed to make Mr. Gagan’s claim a county charge it will render the statute, as so construed, unconstitutional. Much reliance is placed by counsel upon the decision of the Court of Appeals in Matter of Chapman v. City of New York (168 N. Y. 80). In that case the question was as to the' constitutionality of a statute which attempted to create a legal charge against a municipality for the expenses of a public officer in defending himself successfully against charges which would require his removal from office if sustained, but it had reference to past proceedings and attempted to give a right which had not existed at the time the charges were heard and determined. (Laws of 1899, chap. 700.) The theory of that decision was that the act then in question, being retrospective in its nature, was equivalent to a grant of the public moneys of a municipality in aid of a private individual. The act now in question is not retrospective. It is purely prospective, and lays down a rule as to cases arising after its enactment and not before it. It is similar to the provisions of the Greater New York charter (Laws of 1901, chap. 466, § 231; since amd. by Laws of 1912, chap. 501) as considered in Matter of Kane v. McClellan (110 App. Div. 44), followed in Matter of Deuel v. Gaynor (141 id. 630). This court, in its decision in Matter of Kane v. McClellan (supra), did not overlook the Chapman case, as the learned counsel for the respondents suggests in his brief. On the contrary, it considered it fully, and that decision was rendered accordingly on the theory that the Chapman case had no application.

The writ of certiorari should be sustained and the determination of the board of supervisors of Rockland county should be annulled, with fifty dollars costs and disbursements, and the claim of the relator is remitted to said board of supervisors to be audited on the merits.

Jenks, P. J., Thomas, Mills and Rich, JJ., concurred.

Writ sustained, determination annulled, with fifty dollars costs and disbursements, and claim of relator remitted to the board of supervisors to be audited on the merits.  