People ex rel. Masterson v. Gallup

[After stating facts.]—The application for the mandamus is resisted upon two general grounds (though there are distinct and separate points made under each). First. That the supervisors had no power to pass the resolution ; ' and, Second, That in attempting to pass it, they did not follow the requirements of the statute {L. 1875, c. 482), under which they professed to act. The various points, under these two general propositions, which have been made in opposition to the application of the relator, will now be examined.

First. It is agreed that the statute, to which reference has just been made, did not authorize the board of supervisors of a county to create or give a clerk to any officer of the county, but “simply gave power to the mode of appointment, etc., of deputies, clerks, etc., already in existence, or whose creation was especially authorized by law.”

By section one of the said act, “the boards of supervisors in the several counties of this State, except in cities whose boundaries are the same as those of the county,” were vested with “ further powers of local legislation and administration,” and empowered “to make and administer, within their respective counties, laws and. regulations as follows: . 2. To fix subject to the limitations of section fifteen, article six of the constitution, the salaries and per 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 num

If, as. the objection concedes may be done, a board of supervisors may, when clerks are allowed by a general law of the state to a county, “prescribe the mode of appointment,” that is to say, change the mode of appointment, and “fix the number, grade and pay” of such clerks, that is to say, enlarge or reduce their, number, change their grade, and pay, is it not a technical construction of the language employed, which limits the power of the supervisors only to such clerks as general statutes authorize ? Nay, does not the •argument defeat itself? It surely is more reasonable to suppose, that it was intended rather to confer the power of creating a clerkship,' than to give the right to change the mode of appointment, abolish, reduce or enlarge the number of clerks, and increase-and decrease the compensation wffien they had been established by general statutes. The former involves no repeal of legislative enactments while the latter does. If a clerkship created by general law may be abolished by the supervisors why cannot one be created, and if two clerks can be given by them to a county officer, when only one was before authorized, why may they not give one to any official, who was previously without any ? The power exerted in either case is precisely of the same character, and there does not seem to be any sufficient reason so to construe the statute as to confer the right of legislation in the one case, and yet to withhold it in the other. The fact is, that a power to “fix the number” of clerks, which a county officer may have, must and does carry with it the authority of giving or withholding clerks, according to the judgment of the body upon whom that power is conferred. In declaring then, that- the coroners of Albany county should have one clerk, the supervisors did that which the statute authorized them to do, to wit: “fix

It was argued that such a construction would place it in the power of boards of supervisors to increase the number of employes. That is true, and it is equally true of the construction maintained in behalf of the respondent; but it is also true, that all power may be abused, and, therefore, may be more safely confided to a body of men directly responsible to a constituency, which can speedily undo bad legislation, than to a foody—the Legislature, for instance—over whom the parties affected have very little control. It was precisely this argument which induced the adoption of section twenty-three of article three of our State constitution, requiring the Legislature to confer by general laws “upon the boards of supervisors of the several counties of the State such further power of local legislation and administration as the legislature may from time to time deem expedient;” and it was also the same reasoning, as well as the constitutional command, which produced chapter 482 of the laws of 1875, the title of which is, “ An act to confer on Boards of Supervisors further power of local legislation and administration, and to regulate the compensation of supervisors.” As a fact, it is well known, that certain officers of counties need clerks, and no sound reason can be given, why the power of creating them should exist in a body, over a large majority of whose members the tax-payers affected have no control. A statute of this character should receive a construction in harmony with its evident intent. In constructing the law under consideration, we are to bear in mind that the chief executive of the State has recently, in a veto message, well said in regard to it: “ The act referred to was passed, as its title declares, ‘ to confer upon boards of supervisors farther powers of local legislation,’ and with the intent that the matters therein specified, being

Second. It is claimed that the resolution is illegal because it directs the clerk to see that the inquisitions, &c., are filed, which is said to be inconsistent with section 778 of the Code of Criminal Procedure, because as has been argued, the coroners are required personally to file them.

This objection, though specious, is unsound. So much of official duty as involves the judgment and discretion of an officer he must personally do, but he is not bound to perform and do in person all details of merely clerical work. A statute may make it the duty of a judge to file certain papers, but it was never doubted that if he sent his clerk with a document to the proper office for filing, that such a discharge of duty was illegal, or the filing a nullity. A clerk acts under the direction of the officer he is employed to assist, and it would be a most strained conclusion that, because the clerk of the coroners was directed to do certain clerical work in aid of their duties by the resolution créating him, therefore, the act of creation was void, although what he was directed to do could properly have been done by him if a coroner had personally requested it. The resolution does not require the clerk of the coroners to file the inquisitions in any particular place. If the general law of the State makes their filing in the clerk's

Third. It is insisted that the resolution violates section 24 of article 3 of the Constitution, which forbids the legislature, the common council of a city or the board of supervisors “ to grant any extra compensation to any public officer, servant, agent or contractor.”

To this argument it may be summarily said, that it is, at least, somewhat novel. It has not been hitherto supposed that- if an officer was given a clerk that the officer himself received u extra compensation;” if he does, it would be difficult to demonstrate it. The practical construction of the constitution for many years, as well as reason, forbids the acceptance of the objection as sound.

An examination of the various objections made to the power, which the supervisors of Albany county have exercised in giving to the coroners of such county U clerk, leads to the conclusion that neither is maintainable. It remains to be shown that the several propositions of the respondent, under the second general proposition—“ that the supervisors did not follow the requirements of the statute (L. 1875, c. 482), under which they profess to act ”—are equally untenable.

First. It is argued that the resolution was never passed because in form it was not written on a distinct and separate piece of paper, but was offered as contained in the report of the committee, and that this was simply the adoption of a report of a committee.

The act of 1875 does not require or prescribe any form of enactment. The report of the committee recommended the adoption of the resolution, which was written out. After accepting the report, the board'fixed

Second. The remaining objections relate to omissions subsequent to' the adoption, and cannot affect the enactment itself, which became valid by the vote.

This is apparent by the second section of the act, which prescribes what shall further be done with “ every resolution adopted in pursuance of this act.” It must then, that is, after adoption, “be prefixed by a proper title concisely expressing its contents,” etc., and then certified and filed and published. All this has been done in the precise form required by the statute, except that the copy filed with the county clerk was not under the seal of the board because it had none. Very plainly all these provisions are directory. The validity of the act depends npon the will of the supervisors, duly expressed in proper form- and passed by'a legal majority. Whether the board had, or had not, a seal, and, therefore, could or could not certify to their action under seal, was of no consequence. That was directory only, and as the statute does not declare action void unless all subsequent steps had been complied with, it may properly be said, as %vas said by the court of appeals, per Willard, J., in

In overruling the second general proposition, also, and in directing the issue of the'mandamus as asked, the argument urged to the court, that Mr. Masterson has no duties to discharge, will not be answered by the attempt to show that he has. The question was for the supervisors. Courts are not to declare void legislative enactments or constitutional requirements according to their views of what statute or constitutional legislation should be. The creature is not above the creator, and should not undertake the impossible task of usurping his functions. Judicial interpretation should seek for the intent of the body or the individual whose language is to be construed. If the words employed are not of doubtful import, they should • be construed as they read; and if capable of more than one construction, he, whose duty it is to interpret their meaning, should not seek to find ingenious arguments to sustain an interpretation harmonizing with his own views of what ought to have been said, but he should endeavor, if possible, to ascertain and give effect to the intention of those whose will and desire should control the decision of the question submitted.

The order for a peremptory mandamus must be granted.