
    The People ex rel. Gamaliel T. Conine, Relator, v. The County of Steuben et al., Respondents.
    (Supreme Court, Steuben Trial Term,
    November, 1903.)
    County treasurer — Not entitled to fees if his compensation is fixed by the supervisors — Implied and statutory repeal.
    1. 1887, ch. 436, § 5, as amended by L. 1880, ch. 233, adding thereto section 10, repealed by implication L. 1846, ch. 189, § 1, as amended by L. 1871, ch. 110, § 1, abolished, in those counties of the State (New York, Monroe and Seneca excepted) in which the compensation of the county treasurer is fixed by the supervisors of the county, the right which he had had under the acts Of 1846 and 1871 to retain for his own use fees for receiving and paying over the State and school taxes, and confined him to his compensation as fixed.
    The express repeal by the County Law (L. 1892, ch. 686) of the acts of 1877 and 1880 did not revive section 1 of chapter 110 of the Laws of 1871, giving a county treasurer a fee on the State 'tax in addition to his compensation, and this because L. 1892, ch. 677, § 31, declares that “ The repeal hereafter or by this chapter of any provision of a statute, which repeals any provision of a prior statute, does not revive such prior provision.”
    That part of the act of 1877 which authorizes the board of supervisors to fix the salary of a county treasurer was saved, in .view of the fact that the County Law gives the board a similar power, from the effect of; the County Law repeal by L. 1892, ch. 677, § 32, providing that “ The provisions of a law repealing a prior law, which are substantially re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, and not as new enactments.”
    Altebnative writ of mandamus to compel the county of Steuhen to show cause why a peremptory writ should not issue to compel the county to pay the relator fees, amounting to about $5,000, for collecting the State and the school taxes during the six years of his services as county treasurer, which ended December 31, 1900. Before the relator was elected for his first term, and in 1890, the board of supervisors had passed a resolution that the “ salary and compensation of the county treasurer should thereafter be $1,200.00 per year.” Fourteen months after the relator went out of office he presented to the board his bill for these fees, additional to his salary, and the board refused to pay it.
    Charles H. McMaster (Monroe Wheeler, of counsel), for relator.
    William W. Clark (William H. Nichols, of counsel), for respondents.
   Nash, J.

The confusion and apparent inconsistencies and incongruities found to exist in the laws enacted from time to time, regulating the fees of county treasurers, by Judge Allen in deciding the case of Board of Supervisors v. Otis, 62 N. Y. 97, had not been removed at the time the relator held the office of treasurer of the county of Steuben. The question whether county treasurers might or might not receive fees in addition to their salary at the time the relator held office, in counties in which the compensation of the county treasurer had been fixed by the board of supervisors, has not been determined by any decision to which reference has been made by counsel. The question at issue here, so far as I have been able to discover, remains undecided. A review of the statutes is, therefore, necessary to its determination.

The Revised Statutes made it the duty of the county treasurer (1 Rev. Stat. 369, § 20), “to receive all moneys belonging to the county from whatever source they may be derived; and all moneys belonging to this State, which by law are directed to be paid to him; and to pay and apply such moneys in the manner required by law.”

And section 26 of the same article provided as follows: “ The county treasurer shall be entitled to retain a commission of one per cent on every dollar which he shall receive and pay; to wit, one-half of such commission for receiving and the other half for paying.”

Chapter 189 of the Laws of 1846, further regulating the fees of county treasurers, provided as follows:

“ Section 1. The several county treasurers of this state shall hereafter receive for their services, instead of the fees now allowed by law, such compensation as shall be fixed by the respective boards of supervisors of their respective counties, not exceeding the half of one per cent for receiving, and the half of one per cent for disbursing, and in no ease to exceed the sum of five hundred dollars per annum.”

The act of 1846 was amended by chapter 110 of the Laws of 1871, so as to read as follows:

“ Section 1. The several county treasurers of this state shall hereafter receive for their services, instead of the fees now allowed by law, such compensation as shall be fixed by the respective boards of supervisors of their respective counties, not exceeding the half of one per cent for receiving, and the half of one per cent for disbursing all moneys belonging to their said counties respectively. In addition "to such compensation so fixed as aforesaid, they shall be entitled to retain a commission of one per centum on every dollar belonging to the State, which they shall receive and pay over, to wit: one-half of one per centum for receiving and one-half of one per centum for disbursing, but in no case to exceed the sum of five hundred dollars. This act shall not apply to the counties of New York, Kings, Albany, Otsego, Onondaga, Erie and Westchester.”

The act of 1846 expressly provided that, instead of the fees allowed by law, being the fees given by the Revised Statutes, county treasurers should receive for their services the compensation fixed by the board of supervisors of their respective counties.

The contention, in behalf of the relator is that the statute of 1846 gave to the board of supervisors power to fix the compensation for such services only as should be rendered to the county, and did not have the effect of depriving the county treasurer of his fees for receiving and paying over moneys belonging to the State. The case of the Board of Supervisors v. Otis is cited in support of this contention. There it was held that the treasurer of the county of Monroe in the. years 1858, 1859 and 1860, was entitled to retain the fees allowed to him by the comptroller for services rendered in receiving and paying over the State tax. The case cannot be regarded as authority for the proposition that county treasurers may receive their fees in addition to the compensation fixed by the boards of supervisors under the act of 1846, for the reason that the board of supervisors of the county of Monroe had not fixed the salary of the county treasurer.

In 1877 the compensation of county treasurers was changed from the fee system to a salary. Chapter 436 of the laws of that year provided as follows:

“ § 5. Every county treasurer hereafter elected or appointed shall receive as compensation for his services an annual salary, to be fixed by the board of supervisors. He ■shall not receive to his use any interest, fees or other compensation for his services, except in proceedings for the sale -of lands for unpaid taxes as may be now provided for by law.”

In this statute there was no provision relative to the fee of -one per cent, for receiving and paying over the State tax, ■other than the provision that the county treasurer should not receive the fee for his own use. In 1880, by chapter 233, the act of 1877 was amended by adding an additional section, as follows:

“ § 10. Nothing in this act shall be construed as preventing the treasurers of the several counties of this State, in which the treasurer is a salaried officer, from retaining for the benefit of their said counties, respectively, the same compensation for receiving and paying the money belonging to the State every year, as that now allowed by law, where such treasurer is not a salaried officer, and the comptroller is-hereby authorized to allow to the said treasurers, for the benefit of their respective counties, on State taxes. hereafter received and paid over by them, where not already allowed, the compensation now allowed by law, where such treasurer is not a salaried officer.”

By the act of 1877, and the amendment of 1880, a complete. change was made in the system of compensating county treasurers of the State, other than in the city and county of New York, and the counties excepted from the provisions of the act. In the counties in which it was provided that the compensation of the county treasurer should be fixed by the-board of supervisors, he was entitled to receive the annual salary fixed by the board in lieu of fees as provided by the-act of 1871, as compensation for his services, and he was not entitled to receive to his use any fees or other compensation. Board of Supervisors v. Jones, 119 N. Y. 339.

The effect, therefore, of the act of 1877 was to repeal by implication the act of 1846 as amended by the act of 1871, so far as it authorized the fees system of compensation for the services of county treasurers.

This seems to be conceded on behalf of the relator, but it is contended that the acts of 1877 and 1880 having been expressly repealed by section 238 of the County Law (Laws of 1892, chap. 686), that thereby the provision of the act of 1871 giving to the county treasurer the one per cent, for receiving and paying over moneys to the State, was left in full force. This contention would be upheld but for the-provisions of the Statutory Construction Law. Laws of 1892, chap. 677. Before that act it was held, that “ where a repealing statute is itself repealed, the first statute is revived, and it matters not whether the repeal in either case be by expres language or by implication.” Van Denburgh v. Village of Greenbush, 66 N. Y. 1.

The first sentence of section 31 of the Statutory Construction Law reads as follows: “ The repeal hereafter or by this-chapter of any provision of a statute, which repeals any provision of a prior statute, does not revive such prior provision.”

This provision is applicable in construing other laws passed at the same session. Rev. Stat. (Banks’ Ed.), 118, § 31, inote.

The part of the act of 1877, which provides that every county treasurer thereafter elected should receive for his services an annual salary to be fixed by the board of supervisors, is, however, expressly saved from the effect of the repeal by section 32 of the Statutory Construction Law, which provides as follows: The provisions of a law repealing a prior law, which are substantially re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, and not as new enactments.”

The County Law gives to the board of supervisors the power to fix the salaries and compensation of county treasurers, § 12, subd. 5.

In 1890 the board of supervisors of Steuben county undertook to fix the salary of the county treasurer, and for that purpose appointed a committee of the board to fix the salary. The committee by its report recommended that the salary of the treasurer be fixed at $1,200 per annum. The report of the committee was adopted and the committee discharged. There was no formal resolution of the board fixing the salary. While the action of the board was informal and not in accordance with the manner in which the board should have acted in the exercise of its legislative powers, I am inclined to the opinion that it is too late now to declare the act of the board insufficient for the purpose of fixing the relator’s salary. It was done in an attempted compliance with the enactments of 1877, which provided that the county treasurer should receive an annual salary to be fixed by the board of supervisors. Both the parties having proceeded upon the assumption that the action of the board was effectual to fix the salary, their acts may be regarded as a practical interpretation of the law for the purposes of their contract.

It follows that the application for the writ should be de- - nied.

Application denied, with costs.  