
    PEOPLE ex rel. MASTERSON v. GALLUP.
    
      N. Y. Supreme Court, Third District, Third Department; Special Term,
    
    
      February, 1883.
    Mandamus to Compel Payment of Officer’s Salary.—Supervisors’ Legislative Powers.—County Officers, Clerks, and Assistants. —Coroners’ Clerks. ’
    Under L. 1875, p. 556, c. 483, § 1, subd. 3,—conferring powers of local legislation on the boards of supervisors of the several counties of this State, including the power “to fix [subject to constitutional limits] the salaries and per diem allowance of county officers whose compensation may be a county charge, .... and to prescribe the mode of appointment, and fix the number, grades and pay of the deputies, clerks and subordinate employes in such offices,”—the supervisors have power to provide a clerk for a county officer or board of officers, who had none before,—e. g., a clerk to the coroners of the county.
    
    
      A resolution of appointment in such case, is not rendered illegal by its directing the clerk to file inquisitions, which the statue requires the principal officer to file in the county clerk’s office; for the resolution may be construed as directing the clerk to perform for the principal this duty.
    
    The constitutional prohibition (Const, art. 3, § 24) against increase of official compensation does not preclude giving an officer a clerk or assistant.
    Legislation by the supervisors under the act of 1875, may be in the form of a resolution reported by a committee and adopted by a vote of the board in passing on the report, 
    
    If the board of supervisors have no seal, the lack of a seal which the statute directs to be affixed to the certificate to the resolution, does not impair its validity.
    Form of resolution and record and notice, in such a case.
    A mere custodian of public moneys, collected for a specific purpose under color of law, cannot withhold them on the ground that the supposed legal authority for collection and application is invalid.
    Application for mandamus.
    The relator, John P. Masterson, having served as clerk to the coroners of the county of Albany, under appointment, the details of which are stated below, applied for a peremptory mandamus against Albert Gallup, treasurer of Albany county, to compel the respondent to pay his salary.
    The application was upon the following agreed statement of facts :
    On December 21, 1882, a special committee of the board of supervisors of Albany county, to whom the matter had been referred, reported favorably this resolution : “ Resolved, by the board of supervisors of the county of Albany, that hereafter there shall be one clerk only to coroners of the county of Albany, who shall receive a salary of one hundred dollars monthly, payable on the first day of each month, by the county treasurer. Such clerk shall be appointed by the coroners of said county, in the month of December of each year, by a written appointment, signed by a majority of such coroners, and acknowledged by each coroner signing the same before some officer authorized to take the proof and acknowledgement of deeds within such county, and the same shall be filed in the clerk’s office of said county. Such clerk shall hold his office for one year from such appointment, and until his successor is duly appointed. The office of the coroners shall be located in the rooms of the board of supervisors, and the duty of the clerk shall be to attend at such office during each week day, and to aid the coroners in the discharge of their duties, and to receive, preserve and file each inquisition, and to keep a record of the same. The foregoing resolution is passed by authority of chapter 482 of the laws of 1875, sub-division second of section first.” .
    On the day of its presentation (December 2, 1882) the report was accepted, and under the rules of the board its considération was postponed to the next day. On that day, “it was taken up in the order of business devoted to the consideration of the matters reported by the several committees of the board.” The resolution as recommended and contained in the report of the committee was then read by the clerk, and the chairman put the question thus : “All in favor of adopting the resolution will answer in the affirmative, those opposing in the negative.” The clerk then called the roll of the members, entering the names of those voting in the affirmative and in the negative upon the journal, which resulted in nineteen votes in favor of its adoption, and seven against it. Nineteen was a majority of all the members elected to the board. The resolution as passed, with the vote thereon, was duly entered upon the journal of the board. '
    A copy of such resolution, having a prefix as follows : “No. 1. At a meeting of the board of supervisors of the county of Albany, held on Friday, December 22, 1882, the following was adopted,” and the following postscript, “and was passed by a majority vote of all members elected to the board,” and attested by the signature of “Edward A. Maher, president of the Board of Supervisors,” and of Thomas H. Craven, clerk,” but not by any official seal, there being in existence no official seal of the board of supervisors of Albany county, was filed in the office of the clerk of Albany county during the month of December, 1882, and within a week of the close of the session of said board.
    Within six weeks of the close of the session of said board of supervisors, there was published in the newspapers in the county of Albany, appointed to publish the session laws of the Legislature, the following :
    “ NUMBER 1.
    PROCEEDINGS OE THE BOARD OE SUPERVISORS.
    At a meeting of the board of supervisors of Albany county, held at their rooms on Friday, December 22, 1882, the following resolution was adopted : A resolution prescribing the mode of appointment and the number of clerks to the coroners of Albany county and fixing the pay thereof: Resolved (by the board of supervisors of the, county of Albany), That hereafter there shall be one clerk only to coroners of the county of Albany, who shall receive a salary of one hundred dollars monthly, payable on the first day of each month by the county treasurer. Such clerk shall be appointed by the coroners of said county, in the month of December of each year, by a written appointment, signed by a majority of such coroners, and acknowledged by each coroner signing the same before some officer authorized to take the proof and acknowledgment of deeds within said county, and the same shall be filed in the clerk’s office of said county. Such clerk shall hold his office for one year from such appointment, and until his successor is duly appointed. The office of the coroners shall be located in the rooms of the board of supervisors, and the duty of the clerk shall be to attend at such office during each week day, and to aid the coroners in the discharge of their duties, and to receive, preserve and file each inquisition, and to keep a record of the same. The foregoing resolution is passed by authority of chapter 482, of the laws of 1875, subdivision second of section first. And was passed by a majority of all members elected to the board. Edward A. Maher, president, Thomas H. Craven, clerk.
    Pursuant to the resolution adopted by the Board of Supervisors, and in conformity with the form and manner therein prescribed, the relator, John P. Master-son, was, by the coroner of Albany county, elected on the 22d day of December, 1882, their clerk for one year from that date, and such appointment was filed in the office of the clerk of Albany county, on the 29th day of December, 1882.
    From the time of filing the appointment,-the relator has discharged the duties of clerk to the said coroners, and a few days after January 31, 1883, he demanded of the respondent, Albert Gfallup, the county treasurer of Albany county, the sum of one hundred dollars inpayment of his salary for that month, which payment was refused.
    At1 the time of such demand, there had been assessed upon, and collected from the tax-payers of Albany county, the sum of twelve hundred dollars to pay the salary of the clerk appointed under the resolution, which sum was in the possession and under the control of the said Albert Gallup, as treasurer of the county, for that object.
    
      Peckham and Rosendale for the relator.
    
      M. T. Hun and Matthew Hale, opposed.
    
      
       See also Conway v. Mayor, &c., of N. Y., 8 Daly, 306, and Opin. Attys. Gen. 433. Compare People ex rel. Welch v. Nash, 62 N. Y. 
        484, affirming 3 Hun, 535, a case which arose under another statute 'as to custody of county property. 1 R. S. 366 § 4, subd. 1.
    
    
      
       For other illustrations of the principle that this power of local legislation does not authorize interference with the effect of existing statutes any further than expressly provided,—see Spring v. Wait, 22 Hun, 441; People ex rel. Welch v. Nash, 62 N. Y. 484, affirming 3 Hun, 535.
    
    
      
       But the board cannot delegate its powers to a committee. People v. Supervisors of St. Lawrence, 25 Hun, 131.
    
   Westbrook, J.

[After stating facts.]—The application for the mandamus is resisted upon two general grounds (though there are distinct and separate points made under each). First. That the supervisors had no power to pass the resolution ; ' and, Second, That in attempting to pass it, they did not follow the requirements of the statute {L. 1875, c. 482), under which they professed to act. The various points, under these two general propositions, which have been made in opposition to the application of the relator, will now be examined.

First. It is agreed that the statute, to which reference has just been made, did not authorize the board of supervisors of a county to create or give a clerk to any officer of the county, but “simply gave power to the mode of appointment, etc., of deputies, clerks, etc., already in existence, or whose creation was especially authorized by law.”

By section one of the said act, “the boards of supervisors in the several counties of this State, except in cities whose boundaries are the same as those of the county,” were vested with “ further powers of local legislation and administration,” and empowered “to make and administer, within their respective counties, laws and. regulations as follows: . 2. To fix subject to the limitations of section fifteen, article six of the constitution, the salaries and per diem allowance of county officers whose compensation may be a county charge, and which shall not be changed during the term of office of such officers respectively, and to prescribe the mode of appointment, and fix the number, grades and pay of the deputies, clerks and subordinate employes in such offices.”

If, as. the objection concedes may be done, a board of supervisors may, when clerks are allowed by a general law of the state to a county, “prescribe the mode of appointment,” that is to say, change the mode of appointment, and “fix the number, grade and pay” of such clerks, that is to say, enlarge or reduce their, number, change their grade, and pay, is it not a technical construction of the language employed, which limits the power of the supervisors only to such clerks as general statutes authorize ? Nay, does not the •argument defeat itself? It surely is more reasonable to suppose, that it was intended rather to confer the power of creating a clerkship,' than to give the right to change the mode of appointment, abolish, reduce or enlarge the number of clerks, and increase-and decrease the compensation wffien they had been established by general statutes. The former involves no repeal of legislative enactments while the latter does. If a clerkship created by general law may be abolished by the supervisors why cannot one be created, and if two clerks can be given by them to a county officer, when only one was before authorized, why may they not give one to any official, who was previously without any ? The power exerted in either case is precisely of the same character, and there does not seem to be any sufficient reason so to construe the statute as to confer the right of legislation in the one case, and yet to withhold it in the other. The fact is, that a power to “fix the number” of clerks, which a county officer may have, must and does carry with it the authority of giving or withholding clerks, according to the judgment of the body upon whom that power is conferred. In declaring then, that- the coroners of Albany county should have one clerk, the supervisors did that which the statute authorized them to do, to wit: “fix the number” of the clerks which such officials should have.

It was argued that such a construction would place it in the power of boards of supervisors to increase the number of employes. That is true, and it is equally true of the construction maintained in behalf of the respondent; but it is also true, that all power may be abused, and, therefore, may be more safely confided to a body of men directly responsible to a constituency, which can speedily undo bad legislation, than to a foody—the Legislature, for instance—over whom the parties affected have very little control. It was precisely this argument which induced the adoption of section twenty-three of article three of our State constitution, requiring the Legislature to confer by general laws “upon the boards of supervisors of the several counties of the State such further power of local legislation and administration as the legislature may from time to time deem expedient;” and it was also the same reasoning, as well as the constitutional command, which produced chapter 482 of the laws of 1875, the title of which is, “ An act to confer on Boards of Supervisors further power of local legislation and administration, and to regulate the compensation of supervisors.” As a fact, it is well known, that certain officers of counties need clerks, and no sound reason can be given, why the power of creating them should exist in a body, over a large majority of whose members the tax-payers affected have no control. A statute of this character should receive a construction in harmony with its evident intent. In constructing the law under consideration, we are to bear in mind that the chief executive of the State has recently, in a veto message, well said in regard to it: “ The act referred to was passed, as its title declares, ‘ to confer upon boards of supervisors farther powers of local legislation,’ and with the intent that the matters therein specified, being of local interest and importance, should be disposed of by an authority nearer at home than the Legislature of the State. In holding that this statute, by which boards of supervisors are authorized to “fix the number” of clerks to a county officer, confers upon them the power to give or withhold, and to increase or diminish the number of county officers, we construe it in harmony with the constitutional amendment, the object of the act of 1875, as declared in its title, and of that sound policy which requires power to be exercised by those over whom the community affected has direct control.

Second. It is claimed that the resolution is illegal because it directs the clerk to see that the inquisitions, &c., are filed, which is said to be inconsistent with section 778 of the Code of Criminal Procedure, because as has been argued, the coroners are required personally to file them.

This objection, though specious, is unsound. So much of official duty as involves the judgment and discretion of an officer he must personally do, but he is not bound to perform and do in person all details of merely clerical work. A statute may make it the duty of a judge to file certain papers, but it was never doubted that if he sent his clerk with a document to the proper office for filing, that such a discharge of duty was illegal, or the filing a nullity. A clerk acts under the direction of the officer he is employed to assist, and it would be a most strained conclusion that, because the clerk of the coroners was directed to do certain clerical work in aid of their duties by the resolution créating him, therefore, the act of creation was void, although what he was directed to do could properly have been done by him if a coroner had personally requested it. The resolution does not require the clerk of the coroners to file the inquisitions in any particular place. If the general law of the State makes their filing in the clerk's office of the county a necessity, the resolution of the supervisors should receive a construction making the filing there the duty of the clerk. Courts are not to be astute in construing language so as to nullify legislation, but the precise contrary is their duty, when the expression used is of doubtful import.

Third. It is insisted that the resolution violates section 24 of article 3 of the Constitution, which forbids the legislature, the common council of a city or the board of supervisors “ to grant any extra compensation to any public officer, servant, agent or contractor.”

To this argument it may be summarily said, that it is, at least, somewhat novel. It has not been hitherto supposed that- if an officer was given a clerk that the officer himself received u extra compensation;” if he does, it would be difficult to demonstrate it. The practical construction of the constitution for many years, as well as reason, forbids the acceptance of the objection as sound.

An examination of the various objections made to the power, which the supervisors of Albany county have exercised in giving to the coroners of such county U clerk, leads to the conclusion that neither is maintainable. It remains to be shown that the several propositions of the respondent, under the second general proposition—“ that the supervisors did not follow the requirements of the statute (L. 1875, c. 482), under which they profess to act ”—are equally untenable.

First. It is argued that the resolution was never passed because in form it was not written on a distinct and separate piece of paper, but was offered as contained in the report of the committee, and that this was simply the adoption of a report of a committee.

The act of 1875 does not require or prescribe any form of enactment. The report of the committee recommended the adoption of the resolution, which was written out. After accepting the report, the board'fixed upon a time to consider it. When it reassembled, it had before it a written resolution offered by a committee of its members. The resolution was read, and the chairman put the question : “All in favor of adopting the resolution will answer in the affirmative ; those opposed in the negative.” The proceeding co.uld not have been misunderstood, each member, as his name was called, responded and the result was nineteen votes in rhe affirmative and seven in the negative. The resolution precisely as read, was entered upon the journal, and the vote duly recorded. It is difficult to see what more was needed or required to make the action effective. Certainly nothing in the statute requires more, and for a court to insert words therein would be judicial legislation.

Second. The remaining objections relate to omissions subsequent to' the adoption, and cannot affect the enactment itself, which became valid by the vote.

This is apparent by the second section of the act, which prescribes what shall further be done with “ every resolution adopted in pursuance of this act.” It must then, that is, after adoption, “be prefixed by a proper title concisely expressing its contents,” etc., and then certified and filed and published. All this has been done in the precise form required by the statute, except that the copy filed with the county clerk was not under the seal of the board because it had none. Very plainly all these provisions are directory. The validity of the act depends npon the will of the supervisors, duly expressed in proper form- and passed by'a legal majority. Whether the board had, or had not, a seal, and, therefore, could or could not certify to their action under seal, was of no consequence. That was directory only, and as the statute does not declare action void unless all subsequent steps had been complied with, it may properly be said, as %vas said by the court of appeals, per Willard, J., in People ex rel. Scott v. Supervisors of Chenango (8 N. Y. 317-328), when it was urged that a law was void because a certain provision of the Constitution was not complied with in its enactment. “ There is no clause declaring the act to be void if this direction is not followed. It does not stand on the same footing with the requirement of a certain number to form a quorum or to pass a bill.” (See, also, People ex rel. Burrows v. Supervisors of Orange, 27 Barb. 575, 584, and People ex rel. Lefever v. Supervisors of Ulster, 34 N. Y. 268, 272, 273, etc.) The supervisors having the power to pass the resolution, the want of a seal could not affect their action any more than their ability and wisdom as legislators could possibly depend upon the possession of any such instrument.

In overruling the second general proposition, also, and in directing the issue of the'mandamus as asked, the argument urged to the court, that Mr. Masterson has no duties to discharge, will not be answered by the attempt to show that he has. The question was for the supervisors. Courts are not to declare void legislative enactments or constitutional requirements according to their views of what statute or constitutional legislation should be. The creature is not above the creator, and should not undertake the impossible task of usurping his functions. Judicial interpretation should seek for the intent of the body or the individual whose language is to be construed. If the words employed are not of doubtful import, they should • be construed as they read; and if capable of more than one construction, he, whose duty it is to interpret their meaning, should not seek to find ingenious arguments to sustain an interpretation harmonizing with his own views of what ought to have been said, but he should endeavor, if possible, to ascertain and give effect to the intention of those whose will and desire should control the decision of the question submitted.

In closing this opinion it is proper to refer to another point which the facts of this case present. The question which this proceeding involves is not, Shall an enactment made without anthority be enforced ? but it is this: Shall a mere custodian of moneys collected from tax-payers for a specific purpose, under color at least, of law, be allowed to withhold them from the very object for which they were collected, and for which they were received by him % Mr. Masterson asks that the respondent shall pay moneys which the tax-payers of Albany county have placed in the hands of the latter for that very purpose. The county treasurer of Albany county is the officer or agent of its people. The money which the relator seeks, the respondent holds for the purpose of making such payment, and for no other. An order requiring such a payment to be made will devote it to the very purpose for which it was collected, and the officer who is directed to pay can have no cause of complaint, that the judgment of this court compels the performance of a trust and a duty, which, by the act of receiving the money now sought, he voluntarily accepted. In the First Nat. Bank of Oxford v. Wheeler (72 N. Y. 201), it was held that the “railroad commissioners of a town, who have received from the collector of the town, moneys payed by tax to pay interest coupons on bonds of the town, issued in payment of a subscription to the capital stock of a railroad, cannot draw in question the validity of the bonds, to justify them in refusing to pay over the moneys to the owners of the coupons and “the fact that the commissioners resist payment and defend an action against them by the holder of such coupons, pursuant to a resolution of a town meeting, and under a promise of indemnity from the town, does not make the invalidity of the bonds a defense to the action.” The same principle was also held, at a date earlier than that of the decision just referred to, by the judge writing this opinion, in People ex rel. N. Y. & Harlem R. R. Co. v. Havemeyer, 47 How Pr. 494 (see pages 516, 517), a.nd it is exactly applicable to the present proceeding. The respondent has no defense to the present motion, even though the resolution of the supervisors was invalid. He has received the money to pay Mr. Masterson, and he must do that, which by implication at least, he has promised to do.

The order for a peremptory mandamus must be granted.  