Sullivan v. Mayor, Aldermen & Commonalty of City of New York

Folder, J.

We do not agree with the general term, that the clause in section 11 of the tax levy act of 1869 is unconstitutional and void. That act is a local act. It must be confined to one subject, which must be expressed in its title. If it relates to more than one subject, or if it fails in its title to express that, it is void. The distinction between the provisions in that kind of act which fall within and without invalidity is well shown by the two cases of Huber agt. The People (49 N. Y., 132) and Astor in re (50 N. Y., p. 363).

The tax levy acts are for the purpose of providing the moneys needful to carry on the municipal government. The purpose is to raise enough for legitimate objects and no more than enough; so that it is within the subject to limit expenditure, that it may not exceed the levy, as much as it is to levy enough that it may come up to a legitimate expenditure. In Astor m re, it was held valid to provide a limit to the employment of newspapers, so that expenditure might be kept down. And so in the act under consideration it is proper to restrict expenditure by prohibiting the common council from creating new offices.

It is not within the purpose of such an act to change the organization of the municipal government, nor to organize new courts, nor to change the organization of existing ones. The Huber case fell within that category.

But the judgment of the general term is not erroneous in its result. If it be granted that the place of janitor is an office, and he an officer, it does not follow .that the office is new. We have lately held in The People agt. Crooks that the legislature did not create a new office when by statute it in terms abolished the office of collector of taxes of a certain town, and put in its pdaee the office of receiver of taxes of that town with substantially the same duties, powers and jurisdiction, though with a new name and for a term of three years instead of one year for which the collector held The office remained the same. So here it is apparent from the necessities of the case, from the act of 1857 cited, and from the testimony in the case that these courts have required and have had some one or more about them to do just what the plaintiff was apjpointed to do. To appoint him to that labor by a new name is not to make a new office for him. Bat the place of janitor is not an office; he is an employe, an attendant, not an officer in any just sense of the word.

He lacks the essential incidents of an officer. He takes no official oath; he has no stated duration of term; he is not liable to indictment for official misconduct as such, and in other respects he comes short of being an officer.

The judgment appealed from must be affirmed with costs.

Folgee, J., reads for affirmance. All agree.