People ex rel. Hilton v. Supervisors of Albany , 12 Wend. 257 ( 1834 )

By the Court,

Savage, Ch. J.

The question is, whether a county judge is entitled to compensation for attending on the drawing of juries. According to 2 R. S. 413, § 26, it is the duty of such judge to attend at the clerk’s office to witness the drawing the jury, upon receiving notice from the county clerk. Is he entitled to compensation ? The principle of the case of Bright v. Supervisors of Chenango, 18 Johns. R. 242, is, that a public officer, who is required to perform a certain service, and no compensation is provided for such service, is entitled to receive a reasonable allowance therefor, to be audited by the board of supervisors. The same principle was recognized in the cases of Mallory v. Supervisors of Cortland, and Doubleday v. Supervisors of Broome, 2 Cowen, 531, 533. In the first of these cases, the right to compensation was denied, on the ground of a direct expression of the legislature that no compensation should be given. It cannot, I think, be successfully contended, that the service in question has any necessary connection with the judicial duties of the judge, for his place may be supplied by two justices. He has no judicial ' act to perform any more than the sheriff; they are to witness the drawing, to see that the clerk is guilty of no improper act. The performance of the duty may be, and generally must be attended with expense ; and it is not.to be presumed that the legislature intended that the officer should lose both his time and money without just compensation. It is very probable, too, that the reason why no fixed sum was given, was, that the legislature knew the principle upon which this court had acted in the case referred to ; and thought that justice would be better done by leaving the amount of compensation to the supervisors than by giving a gross sum, which in some cases might be liberal, and in others totally inadequate. The revised statutes having been passed since the decisions above referred to, and containing no provision on the subject, impliedly sanction the principles established by this court. Whether the relator has charged the proper sum, is a question for the discretion of the supervisors. All I mean to say is, that he is legally entitled to compensation for the service.