
    The People of the State of New York ex rel. William E. Luyster, Relator, v. James H. Cocks, as Supervisor, and Others, Composing the Town Board of the Town of Oyster Bay, Sitting as a Board of Audit, Respondents.
    Second Department,
    May 12, 1916.
    Constitutional law—constitutionality of Town Law, section 107a, authorizing town board to fix compensation of justices of the peace — test of constitutionality of statute.
    Section 107a of the Town Law, added by chapter 11 of the Laws of 1915, giving to the town board of any town containing a population of 20,000 or more power to fix by resolution an annual salary not exceeding $1,500 for justices of the peace in such town for all services rendered by them in criminal actions or proceedings, is not an unlawful delegation of legislative power and does not violate section 1 of article 3 of the Constitution, which declares that “ The legislative power of this State shall be vested in the Senate and Assembly.”
    The fact that the justices of the peace form a majority of the town board does not in any way affect the validity of said statute.
    While the test of the constitutionality of a statute involves the idea of what may be done under its authority, and not simply what has been done or what is likely to be done, yet before the statute can be declared unconstitutional it must be apparent that it attempts to authorize, either expressly or by implication, the doing of acts not within the legislative power to authorize, and in applying this test no mere insubstantial hypothesis should be used.
    Certiorari issued out of the Supreme Court and attested on the 7th day of February, 1916, directed to James H. Cocks and others, commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in auditing and disallowing the bill of the relator against the town of Oyster Bay.
    
      Charles T. McCarthy, for the relator.
    
      Percy L. Housel, for the respondents Weeks and others.
   Carr, J.:

The relator is a justice of the peace of the town of Oyster Bay, in Nassau county. He presented a claim to the town board for audit, covering services rendered by him officially in various criminal proceedings which had been pending before him. The amounts generally chargeable for the services of a justice of the peace in criminal proceedings are regulated by section 740a of the Code of Criminal Procedure (as added by Laws of 1909, chap. 66). However, by chapter 11 of the Laws of 1915, a new section, numbered 107a, was added to the Town Law (Consol. Laws, chap. 62; Laws of 1909, chap. 63). This new section gave to the town board of any town containing a population of 20,000 or more, according to the last preceding Federal census, power, in its discretion, to fix, by resolution, an annual salary, not exceeding $1,500, for justices of the peace in such town, for all services rendered by them in criminal actions or proceedings, which annual salary shall be in lieu of all charges and fees under section 740a of the Code of Criminal Procedure, or any other statute. Acting under this new provision of the statute, a resolution was adopted by the town board of the town of Oyster Bay, fixing an annual salary for the justices of the peace in that town at the sum of $1,500 per annum. This resolution was adopted January 3, 1916. The claim presented by the relator for audit by the town board covered services rendered wholly after the adoption of the resolution aforesaid, and its audit was refused. The relator contends that chapter 11 of the Laws of 1915 was unconstitutional and void, and that the town board had, therefore, no power to adopt a resolution fixing said salaries. The provision of the Constitution which is said to have been violated by the act of 1915 is section 1 of article 3, which declares that The legislative power of this State shall be vested in the Senate and Assembly.” It is contended that by the act of 1915 the Legislature attempted to delegate its legislative powers in regard to the compensation of justices of the peace of towns in criminal actions and proceedings, and that the attempt was ineffectual in law. On this point the relator cites the recent case of People v. Klinck Packing Co. (214 N. Y. 121). In that case a law, applying generally, had been enacted under the police power of the State. The statute, however, contained a provision which empowered the Commissioner of Labor to suspend one of the general provisions of the act, in his discretion, under certain circumstances. It was held that this provision of the statute was an unconstitutional attempt to delegate legislative powers because (p. 138), “ The question whether the statute shall take effect in any, all, or no cases is left wholly to his [the Commissioner of Labor’s] volition. Under its terms he has the power without check or guidance, so far as we can perceive, to veto the entire clause and decide that its benefits shall never he extended to any case although it comes within the precise terms of the statute, or to permit the exemption in one case and deny it in another precisely similar one.” I see no necessary connection between the decision in the case just cited and the question involved in this appeal. These two statutes have no similarity in purpose or provision. Granting that the power to fix an annual salary for justices of the peace in towns of a certain population is legislative in character, yet it is but a part of the local self-government of such towns and may be conferred upon the town board without in any way violating the rule of section 1 of article 3 of the Oonstitution. The power given under the statute now in question was precisely the same as a power given to a municipal corporation to adopt ordinances for the regulation of municipal matters. The fixation of salaries of municipal officers is largely a municipal matter, though the Legislature may, and in many cases does, exercise that power itself. There is no precedent cited that a statute giving to a locality, through its authorized agents, a power to fix the salaries of its officers or employees, is an unlawful delegation of legislative power. In discussing this question of delegation of legislative powers to municipal corporations for municipal purposes, Cullen, Ch. J., said, in Village of Saratoga Springs v. Saratoga Gas, etc., Co. (191 N. Y. 123, 138): “ I have not referred to the practice of committing to municipal organizations of the State local legislative power, as that is admitted by all to be an exception to the general rule that legislative power cannot be delegated, because it is in conformity with the general principle which prevails with us of fostering local self-government.” Nor does the fact that a town board consists of four justices of the peace, the supervisor and the town clerk (Town Law, §§ 103,131, as amd. by Laws of 1913, chap. 571) in any way affect the question here involved. It is true that the justices of the peace, acting together, form a majority. But that was a question for legislative consideration when it enacted section 107a of the Town Law. A maximum salary was fixed by the Legislature itself, and it had the right to assume, in all human probability under such circumstances, that the members of the town board who were justices of the peace would not so act as to deprive themselves of substantial compensation for their official duties in criminal cases. While the test of the constitutionality of a statute involves the idea of what may be done under its authority, and not simply what has been done or what is likely to be done, yet before a statute can be declared unconstitutional it must be apparent that it attempts to authorize, either expressly or by implication, the doing of acts not within the legislative power to authorize, and in applying this test no mere insubstantial hypothesis should be used. The town board acted properly in rejecting the relator’s claim.

The writ of certiorari should be dismissed, and the determination of the town board confirmed, with fifty dollars costs and disbursements.

Jenks, P. J., Stapleton, Rich and Putnam, JJ., concurred.

Writ dismissed and determination confirmed, with fifty dollars costs and disbursements.  