Gavin v. . Board of Supervisors , 221 N.Y. 222 ( 1917 )

The defendants justify the payment of the sheriff's claim against the county under the provisions of section 240 of the County Law (Cons. Laws, ch. 11). That section enumerates the charges that are proper against the county and in the sixteenth subdivision it says: "The reasonable costs and expenses in proceedings before the governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein."

It is contended on the part of the plaintiff that this provision of the County Law applies only to the costs and expenses of prosecuting the charges and does not include the costs and expenses of the officer in defending himself. The words of subdivision 16 are certainly broad enough to include the costs and expenses of the county officer in defending himself.

The application of the County Law to the case at bar will more clearly appear on a brief reference to the origin of subdivision 16, section 240. By chapter 323, Laws of 1874, the legislature made an appropriation to pay the costs and expenses incurred by the sheriff of Clinton county in proceedings taken to remove him from office, which he successfully resisted. The act then proceeded as follows: "Hereafter in all proceedings before the governor for the removal of any county officer upon charges preferred against him, all the costs and expenses thereof, including those of taking and printing the testimony therein, shall be a county charge," etc.

This provision of the act of 1874 was subsequently placed without material change in section 240 of the County Law. (People ex rel. Benner v. Board of Supervisors, Queens Co., 39 Hun, 442.)

Unless the provision of the County Law offends against section 10, article 8 of the Constitution it would seem to fully sustain the action of the board of supervisors and the other defendants in paying the amount of the sheriff's costs and expenses.

Section 10, article 8 of the Constitution is the familiar section which provides that no county, city, town or village shall give any money or property, or loan its credit to or in aid of any individual, nor shall any county, city, town or village incur any indebtedness, except for county, city, town or village purposes. It has been frequently held under this prohibition that statutes which direct counties and other municipalities to pay the costs and expenses theretofore incurred by a public officer in defending himself upon charges of misconduct presented to the governor or other official having the power of removal are invalid, and that such costs and expenses are not proper charges against the county or other municipality.

But in Matter of Jensen (44 App. Div. 509) Justice WILLARD BARTLETT, who wrote the opinion, said: "A different question would arise in considering legislation for the reimbursement of innocent parties in criminal prosecutions, if the legislation were wholly prospective in its operation. * * * It may be that purely prospective legislation, announcing the intention of the state to pay such expenses incurred in future cases would be deemed expressive of a public purpose." (p. 517.)

The court had at that time under consideration chapter 700, Laws of 1899, which had relation to a successful defense theretofore made by a public officer to proceedings taken for his removal from office, or to an action charging him with crime in connection with his official duties. The court there denied the petitioner's application for relief.

In Matter of Kane v. McClellan (110 App. Div. 44) the same justice was considering section 231 of the charter of the Greater City of New York, which provided that the board of estimate and apportionment was authorized to audit and allow as charges against the city the reasonable costs and expenses incurred by any commissioner, city magistrate or police justice in proceedings to remove him from office. The learned justice referred to his former opinion in the Jensen case, and continued, "The conditional promise to reimburse contained in such statute may be regarded as a part of the compensation which the state, city or town, as the case may be, stipulates that the officer shall receive in return for the services to be by him rendered." (p. 47.)

The court in the Kane case unanimously decided that section 231 of the city charter was not unconstitutional in so far as it was not retroactive. In Matter of Deuel v. Gaynor (141 App. Div. 630) the court again held on the authority of the Kane case that section 231 of the charter was constitutional as applied to expenses incurred and rights arising after the law was passed.

There is no greater objection to the payment of the costs and expenses incurred by a public officer in defending himself against charges of misconduct than there is to the payment of the costs and expenses incurred in the prosecution of such charges. When authorized in advance the payment of the costs and expenses of the successful party to a litigation is not a gift to him, but a recompense for loss actually sustained.

It follows that subdivision 16, section 240 of the County Law does not offend against the Constitution. It might be well to fix the items of the costs and expenses that may be allowed under the section, as is done in civil actions, so as to prevent the recovery of fanciful and excessive claims, but that is a matter for the legislature.

I recommend that the judgment appealed from be affirmed, with costs to respondent Henry W. Snell.

HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.

Judgment affirmed.