People ex rel. Benner v. Board of Supervisors

Barnard, P. J.:

The intent of that part of chapter 323, Laws of 1874, page 388, upon which the claim herein rests, is manifest from the appropriation which immediately prece les it. There had been an unsuccessful charge of malfeasance against the sheriff of Clinton county. The district attorney had employed counsel to prosecute. The investigation was referred by the governor to the county judge to take the jwoof and the sheriff had defended himself. All the bills were allowed, and then follows the words providing that in all proceedings thereafter before governors for the removal of any county officers upon charges preferred against him, “ the costs and expenses thereof, including those of taking and printing the testimony therein, shall be a county charge upon such county.” It is manifest that the section was passed to include a fair charge for a counsel fee under the term costs and expenses. It would also fall within the term taking the testimony, for that cannot be done without the aid of one trained to that pursuit by previous study of the rules of testimony. The objection, therefore, to the allowance-of the counsel fee as not within the law is not well founded. The legislature had allowed similar charges, and then provided that thereafter the costs should be a county charge. The case is not within the provisions of the amendment to articles 15 and 16 of the State Constitution. By those articles bribery was made a high offense, and district attorneys were charged with the prosecution thereof in their several counties. This was intended only to be through the intervention of grand jurors, for the district attorney could act in no other way. He was to prosecute as district attorney, and the expenses in investigating and prosecuting charges of bribery committed in the county of such district attorney was to be charged against the State. The ' amendment was designed to meet cases of bribery, not alone upon the part of the county officers of such counties but all officers, executive, legislative and judicial as well. There was no prosecution by the district attorney within the spirit of those amendments. The power upon the part of the attorney general to employ special counsel in a case like this was not passed upon by the Court of Appeals in Attorney General v. Continental Life Insurance Company (88 N. Y., 571). It was only decided upon broad grounds that an allowance upon the distribution of assets could not be made to the employees of the attorney general as special counsel. This case is different. The governor cannot take the testimony, and such onerous duties are charges upon the attorney general that he cannot always attend personally or by regular deputy. The legislature has given the attorney general power in certain cases to employ counsel to be paid out of the State treasury. (Chap. 357, Laws of 1848.) The power to employ is sufficient to meet this case and the law of 1874 puts the costs of the particular employment upon Queens county. It may be that there are parts of the bill which could be objected to. The county have litigated on the ground of non-liability.

The order should be affirmed, but with leave to the county of Queens to make an issue upon the bill or any part of it; no costs to either party on this appeal.

Dykman, J., concurred; Pratt, J., not sitting.

Order granting mcmdamus affirmed, with leave to defendant to make an issue upon the facts stated in moving papers.