People ex rel. Masterson v. Gallup

Bockes, J.:

The most serious question in this case is whether the resolution of the board of supervisors is within the authority of chapter 482, Laws of 1875. The part of that statute important in this case is as follows : “ To fix subject to the limitations of section 15, article 6 of the constitution, the salaries and jper diem allowance of county officers whose compensation may be a county charge, and which shall not be changed during the term of office of such officers respectively, and to prescribe the mode of appointment and fix the number, grade and pay of the deputies, clerks and subordinate employes in such offices. ” Under authority given by this law the supervisors passed a resolution appointing a clerk to the coroners of the county of Albany, and fixing his salary.

It is insisted by the defendant that this resolution was not so adopted as to be valid; and again, that it was not authorized by the statute. Ve pass the first point to examine the second.

The defendant urges that the authority given by the statute is only to regulate the number of clerks, etc., when some have been authorized by law. And the resolution of the supervisors seems to have been intended to make it appear that such was their action. It says “ that hereafter there shall be one clerk only to the coroners,” as if the resolution would make a reduction of a larger number, and as if it were passed in the interest of economy, while in fact prior to that resolution there had been no such clerk at all. We have, however, no occasion to pass on this construction given to the statute by the defendant.

Again, the defendant insists that the statute does not authorize the appointment of a clerk or clerks for every comity office, but that it authorizes only the regulation of clerks, etc., in the county offices which are by law required to be kept.

The statute is rather loosely drawn, as is customary. It uses the words “such offices” without having previously spoken of any offices. The word “ offices ” cannot be a mistake for officers, because the expression is “ in such offices. ” And the preceding words, “ the deputies, clerks and subordinate employes, ” are such as would not be applicable to every county officer. For instance, the county judge is a county officer, and, as the relator insists, the supervisors could under this statute authorize the appointment of a deputy clerk and subordinate employes for him. Yet it is plain that the words “ deputies, clerks and subordinate employes ” are quite inapplicable to the county judge.

On the other hand, those words are applicable, and peculiarly applicable, to the offices which certain county officers are required to keep. For instance, the county clerk is to keep an office which is to be open at certain hours. So the sheriff is to keep an office; and “ in such offices ” it is proper and necessary that there should be “ deputies, clerks and subordinate employes. ” And the supervisors seem to have appreciated this view, for their resolution not only appoints, the clerk, but it goes on to state where the coroners shall have their office and where the clerk shall attend. Thus the resolution indicates a suspicion that the words “ in such offices ” had a local meaning. But as there is no law requiring the coroners to keep an office this provision of the resolution does not help the relator. The relator construes the statute as if it read “ fix the number, grade and pay of the deputies, clerks and subordinate employes of such officers. ” This would be very different from the statute as it is. This view is strengthened by. a consideration of the duties attempted to be imposed on this clerk. He is to attend at the office each week day to aid the coroners in the discharge of their duties and to receive, preserve and file each inquisition, and keep a record of the same. But section 778, Code of Criminal Procedure, requires the coroner to file these papers in certain clerks’ offices; in Albany county, in the county clerk’s office, and therefore this clerk cannot file them in his own office. If the resolution means that he is to file them in the county clerk’s office, that is by statute one of the duties of the coroners. The duties of the coroners are not and cannot be discharged at the office provided for, so that it is difficult to see how this clerk attending there can aid them in those duties.

Indeed, by the language of this resolution, this so-called clerk of the coroners seems to be made a public officer with distinct duties; not subordinate to the coroners, not subject to their control. So that, in fact, there was an attempt on the part of the supervisors to create a new county officer. And this new county officer, so far as he -is charged with any duties, except those of sitting in -the supervisors’ room, is really to perform' the duties which the statute imposes on the coroners or the county clerk.

In our judgment, therefore, this subdivision of the statute above quoted authorized two things: First. To fix the compensation and* per diem allowances of county officers; and second. To prescribe the mode of appointment and fix the number, grade and pay of the persons who are needed in county offices, viz., the deputies, the clerks, the messengers and the like. Many such persons may be needed in county-offices, as to which the supervisors may judge.

"We do not mean to say, as was suggested* on the argument, that the assignment as a public room for the use of á county official mates that room a “ county office ” under this section. But the distinction is familiar that there are certain county offices, for instance those of the county clerk and county treasurer. These contain property of the county to be preserved and cared for by each successive officer, and by the words m such offices, that is,- in coirnty offices, we think that the legislature referred to such offices as above described. And we think that they did not authorize the supervisors to appoint deputies, clerks and subordinate employes to every county officer.

We are also of the opinion that the resolution in fact creates a new officer, charged with some of the duties of the coroner and with some of the duties of the county clerk, and is for that reason unauthorized.

For these reasons we think that the order should be reversed and the motion denied, without costs to either party.

Learned, P. J., and Boardman, J., concurred.

Order reversed and motion for mandamus denied, without costa to either party.