
    The People ex rel. David L. Follett et al., Resp’ts, v. Ashbel P. Fitch, as Comptroller, etc., App’lt.
    
      (Court of Appeals,
    
    
      Filed March 12, 1895.)
    
    1. Judges—Compensation.
    Section 12, Art. 6 of the New Constitution is not retroactive in its effect, and does not affiect § 1109 of the Consolidation Act, as amended by chap. 104 of 1893.
    2. Same.
    Such amendment does not tend in any way to disturb the policy that seeks to maintain uniformity of salary among judicial officers of the same; ' grade.
    3. Same.
    The mode, prescribed by such amendment, for ascertaining from time-to time the amount of expenses and disbursements of supreme court justices, designated to come from other judicial districts and sit in the-general term of the first judicial department, is judicious and proper.
    Appeal from order of the general term of the superior court of the city of New York, which affirmed an order of special term granting an application by the relator for a writ of peremptory-mandamus.
    
      David J. Dean, for app’lt; Elihu Root, for resp’ts.
   Bartlett, J.

— This is an appeal from an order of the general term of the superior court affirming an order of the special term which directed the issue of a writ of peremptory mandamus to the comptroller of the city of New York, commanding him to deliver to the relators certain warrants which were for the amounts certified by the presiding justice of the supreme court in the first, judicial department as a reasonable sum to be paid by the city of New York as compensation for the expenses and disbursements-of each of the respondents in the performance of his duties under the designation of the governor to sit as justices of the general term for the first department

The relátoís are justices of the supreme court from judicial districts other than the first, and during the. month of January, 1895,. they sat as justices of the general term in the first department.

The presiding justice of the first judióial department certified as to each of the relators that the sum of $416.66 was a reasonable sum to be paid by the city of New York as compensation for his-expenses and disbursements in the performance of his duties under-such designation.

This certificate was made pursuant to § 1109 of the New York City Consolidation Act of 1882, as amended by chapter 104 of the Laws of 1898. -

■ .The warrants are withheld upon the ground that the provisions of chapter 104 of the Laws of 1893 are invalid under the Constitution which went into effect on the first of January, 1895.

The statute reads as follows: .

“ Whenever any justice of the supreme court from any judicial district, other than the first judicial district, shall be designated as one of the justices of the general term in the first judicial department, he shall be paid by the" city of New York such sum as-shall be certified to be reasonable by the presiding justice of the first judicial department, not exceeding the sum of five thousand dollars in any one year, as compensation for his expenses and disbursements in the performance of his duties under such designation ; and whenever one or more of the said justices shall be duly assigned to hold any other court than the general term, or perform judicial duties in and for the first judicial district, he shall be paid the sum of ten dollars a day for every day such justice shall sit and perform such judicial duties, including the time necessarily devoted to the examination and decision of cases heard by such court while he may be a member thereof.”

(Laws of 1893, vol. 1, p. 205.)

The provision of the new Constitution referred to reads as follows:

“The judges and justices hereinbefore mentioned shall receive for their services a compensation established by law, which shall not be increased or diminished during their official terms, except as provided by section 5 of this article.” (Constitution of 1894, article 6, § 12.)

Section 5, above' referred to, has no bearing upon this matter. The provision of the old Constitution which the above-quoted paragraph supersedes was as follows:

“ The judges and justices hereinbefore mentioned shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms.” (Constitution of 1846, article 6, § 14, as amended in 1867.)

The suggestion of counsel that this appeal presents the question of the constitutionality of the act of 1893 under the Constitution which went into effect on the first day of January, 1895, is erroneous.

This act is not in any way affected by the new Constitution, as that instrument has no retroactive effect in this case, and only condemns subsequent legislation that may offend any of its provisions.

We shall, therefore, consider the act of 1893 in the light of the legal conditions existing at the time of its enactment.

It may be observed at the outset that this act is in harmony with the legislative policy of the state existing for many years, to ■ pay to justices of the supreme court their expenses and disbursements incurred in the performance of their judicial duty when absent from their homes.

The earliest act is chapter 374 of the Laws of 1852, authorizing the chief judge of the court of appeals to assign any justices of the supreme court to sit in the city of New York and requiring the justice so assigned to render the service.

This was followed by chapter 575 of the Laws of 1855, authorizing the supervisors of New York “ to pay such justices so assigned a sum not exceeding ten dollars a day for every day such justice shall sit and perform such judicial duties.”

Chapter 414 of the Laws of 1875 extended this provision so as to include the time necessarily devoted to the examination and decision of cases by justices assigned to the general term.

Chapter 410, Laws of 1882 (the New York city, consolidation •act), reproduced the provision thus amended in section 1109, and this was again amended by chapter 104 of Laws of 1893, now under consideration.

The distinction between compensation for services and compensation for expenses was pointed out by this court in People ex rel. Bockes v. Wemple, 115 N. Y. 302; 26 St. Rep. 330.

Prior to 1872 justices of the supreme court received as compensation for services a certain salary, and in addition a per diem allowance of five dollars a day for their reasonable expenses when absent from home and engaged in the performance of judicial duty. (Chap. 408, Laws 1870, § 9.)

The legislature (Chap. 541, Laws 1872, § 1) changed this per diem allowance and provided as follows:

“The said justices of the supreme court, except in the first judicial district, shall each receive the sum of twelve hundred dollars annually from the first day of January, 1872, in lieu of and in full of all expenses now allowed by law.’’

The question was, therefore, presented to this court whether Justice Bockes, who had retired from office before the expiration of his term by reason of having attained the age of seventy years, was entitled to receive from the state, in addition to the original salary of $6,000, the further sum of $1,200.

The answer to this question depended upon the fact whether the $1,200 was to be regarded as a reimbursement of expenses or an increase of salary. This court held to the latter view.

Judge Gray, delivering the prevailing opinion, says (115 N. Y. 309, 310): “This language (of the act of 1872) is substitutional in its effect. It substitutes an annual grant of money to the incumbent in the place of an allowance for expenses. This, I think, was a clear grant of pay or compensation having no connection with the expenses incurred by a justice. As granted by this act, it became actually and plainly as much a part of the compensation to the justice as though the salary eo nomine had been increased to compensate him further for what his office entailed upon him in the way of duties and work. Expenses orna expenses, he became entitled to the whole of the $1,200.”

The $1,200 was treated as salary because that amount could no longer be regarded as" an allowance for expenses, but rather a fixed statutory sum to which the relator was entitled absolutely, without regard to his incurring expenses.

No such situation is presented by chapter 104, Laws of 1893, but, on the contrary, in clear and unmistakable language, a scheme is created for reimbursing the expenses and disbursements of the justices of the supreme court designated to come from other judicial districts and sit in the general term of the first judicial department.

The mode prescribed for ascertaining from time to time the amount of these expenses and disbursements is judicious and proper.

Only such sums can be paid, within a named limit, as shall be certified to be reasonable by the presiding justice of the first judicial department.

It is true that this provision is subject to the criticism that the presiding justice is not made, in the technical sense, an auditing officer to pass upon actual items of disbursement, but the obvious answer is that it is competent for the legislature to allow its designated representative to certify such reasonable sum as shall be sufficient to reimburse the expenses and disbursements of the justices required to serve in the general term of the first judicial department.

The act of 1893 is not affected by article 6, section 14 of the Constitution of 1846, as amended in 1867, for the reason that it does not assume to deal with compensation for services, nor does it tend in any way to disturb the policy that seeks to maintain uniformity of salary among judicial officers of the same grade.

The fact that a reasonable gross sum, instead of items, is certified to cover expenses and disbursements does not make it any the less compensation for that purpose, as it is only when these expenses and disbursements have been incurred that the presiding justice will be called upon to act.

We are of the opinion that the act in question is a proper and Constitutional exercise of legislative power, and in line with the settled policy of the state and the practical construction given to similar legislation for more than a generation.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.  