
    In the Matter of the Application of Harry G. Lake, Appellant, for a Writ of Mandamus against Enoch V. Stoddard, President of the State Board of Charities, and W. C. Wilson, State Comptroller, Composing the Salary Classification Commission, Respondents.
    Third Department,
    March 11, 1908.
    Public officer — no office of treasurer in Rome State Custodial Asylum — mandamus — writ to compel classification denied.
    The statutes governing the Rome State Custodial Asylum do not create the office of treasurer as a distinct office or position, and the person acting as treasurer is not entitled to compensation from the State as such officer.
    As no such office is created by statute, mandamus will not lie to require the State Board of Charities to classify the person performing such duties in a grade as a treasurer entitled to payment under the State Charities Law.
    
      Appeal by the relator, Harry G\ Lake, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of April, 1907, denying the relator’s application for a writ of mandamus requiring the respondents to classify him into a grade as the treasurer of the Rome State Custodial Asylum.
    
      A. L. McAdam, for the appellant.
    
      William S. Jackson, Attorney-General, and Timothy I. Dillon, Deputy Attorney-General, for the respondents.
   Cochrane, J.:

By chapter 239 of the Laws of 1903, amending section 17 of the State Finance Law (Laws of 1897, chap. 413), it is provided that The State Comptroller and the president of the State Board of Charities shall from time to time classify into grades the officers and employes of the various charitable and reformatory institutions required by law to report to the Fiscal Supervisor and in the month of September of each year recommend to the Governor such changes in the salaries or wages of such officers and employes for-the ensuing fiscal year as may seem proper, but such changes shall not be made unless the Governor shall approve the same in wilting.”

Under the above provision this proceeding is instituted by the appellant, who claims to be the treasurer of the Rome State Custodial Asylum. He was appointed such treasurer in the year 1902 by the board of managers of said asylum, who also fixed -his salary at $1,200 a year; he has given a bond as such treasurer; has performed the' duties appertaining to such office, and for two years, and until January, 1905, received said compensation from the State. Since the latter date he has been unable to receive compensation because the respondents have refused to classify him into a grade. Their reason for such refusal is that there is no statutory provision for a treasurer of said asylum or for any salary therefor.

It also appears that of seventeen institutions reporting to the State Fiscal Supervisor but one, the Craig Colony for Epileptics, has a treasurer who receives compensation, and that compensation is made to him for the reason that the statute makes special provision therefor; that the duties of treasurer of said institutions are ordinarily performed by some member of the board of managers without compensation. Both the Fiscal Supervisor of State Charities and the respondents further take the position that there is no occasion for a salaried treasurer of this institution for the reason that adequate provision is otherwise made for the financial branch thereof.

The question presented for our determination is whether the statute creates or contemplates the creation of the office or position of treasurer of said asylum as a distinct office or position for the performance of the duties of which the person performing such duties may demand compensation from the State.

The “ Oneida State Custodial Asylum ” was created by chapter 348 of the Laws of 1893. It was therein provided that said asylum should be governed by a board of three trustees who should appoint a superintendent and that said superintendent should in addition to other specified duties also act as treasurer and clerk of said board and give a bond for the faithful performance of his duties in such sum and with such sureties as the State Comptroller should prescribe.

Chapter 382 of the Laws of 1894 changed the name of said institution to its present name, the “ Borne State Custodial Asylum,” and provided that the trustees should appoint a superintendent and a treasurer and fixed the duties and provided for the salaries of both such superintendent and treasurer.

Chapter 59 of the Laws of 1895 repealed the two last-mentioned acts and provided that the Borne State Custodial Asylum should be governed by a board of eleven managers and that said board of managers should have power to appoint one of their number president of said board and one of their number secretary. It also provided that such managers should appoint a superintendent and a treasurer and prescribed the duties and provided for the salaries of such superintendent and treasurer.

In 1896 the State Charities Law was passed (Laws of 1896, chap. '546). One of the purposes of this act was to bring within its scope and provisions all the charitable institutions of the State. It repealed chapter 59 of the Laws of 1895. Article 6 of the act relates to the Borne State Custodial Asylum. It continues its control a.nd management under a board of eleven managers as did the act of 1895, and directs that they shall appoint one of their number as president and another as secretary. It specifically details the power and duties of the managers which includes the general direction and control of all the property and concerns of the asylum and its interests and requires them to report annually to the Legislature for the preceding fiscal year the affairs and conditions of the asylum. It also particularizes the duties of the superintendent. Ho reference is made to the office of treasurer. Seven different articles of the act relate to as many different State charitable institutions or classes of institutions, and in respect to each one of such institutions, save only the Eome State Custodial Asylum, specific and definite provisions are made for the office of treasurer, except that in article 8 the provision is that the managers shall appoint a superintendent and such other officers as they may deem necessary. This fact, coupled with the fact that the law relacing to the Eome State Custodial Asylum, as it was when repealed by the State Charities Law, made specific provision for a treasurer, shows unmistakably a positive and affirmative legislative intent to make no provision for a treasurer for the latter institution. Such intent is further emphasized by the fact that chapter 462 of the Laws of 1904, amending article 6 of the State Charities Law concerning the Eome asylum, created another office, viz., vice-president, but still omitted any allusion to a treasurer.

It is true that article 3 of the State Charities Law (as amd. by Laws of 1902, chap. 252) provides for reports by treasurers of the State charitable institutions and otherwise makes reference to such treasurers. But this means the treasurers specifically created by statute and in the case of the Eome asylum the person W'ho performs the corresponding functions of a treasurer. Someone, of course, must perform the duties which are ordinarily comprehended within the idea conveyed by the term “treasurer.” But such duties in the case of the Eome asylum must be performed by the managers or superintendent. The statute excludes the idea of the office of treasurer as a distinct and generic office. There is no authority, therefore, for the respondents to classify such office into a grade as the appellant seeks to require them to do. His appointment by resolution or by-law of the board of managers being without statutory authority does not vest him with any office or give him any claim for compensation against the State.

Section 93 of the State Charities Law (as ahid. by Laws of 1904, chap. 462) makes the superintendent of the Rome asylum its chief executive officer and charges him with the duty of appointing clerks, bookkeepers and all subordinate employees and of discharging them when in his judgment it is necessary for the good of the institution. Section 17 of the State Finance Law, as amended by chapter 383 of the Laws of 1899, chapter 432 of the Laws of 1901, and chapter 239 of the Laws of 1903, requires the State Comptroller and president of the State Board of Charities to fix the salaries or wages of such employees subject to the approval of the Governor. The appellant has not been appointed to any position by the superintendent of the institution, nor has his salary or wages been fixed as required by statute. His claim for compensation is based solely on an appointment by the board of managers which they were without legal authority to make. Whatever services he has performed have been under such unauthorized appointment, and were merely such as were required of other officers or employees of the institution.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with costs. 
      
       See articles 4-10.— [Rep.
     