People ex rel. Baumann v. Lyon — 154 A.D. 266

Majority

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The People of the State of New York ex rel. Henry Baumann, Respondent, v. John Lyon, as County Comptroller of Nassau County, Appellant.

Second Department,

December 13, 1912.

Headnote

County — appointment of deputy sheriff to enforce quarantine — power of sheriff to appoint deputy — authority of supervisors to fix or audit salary after services rendered.

As section 96 of the Agricultural Law authorizes the Commissioner of Agriculture to call upon the sheriff of a county to carry out and enforce any regulation which he may make, and provides that the cost thereof shall be a county charge,, etc., a sheriff may appoint a special deputy sheriff to act as inspector in a quarantine on rabid dogs established by the Commissioner. .

Such person is a deputy sheriff although called a quarantine inspector, and the board of supervisors may fix his compensation and audit his claim for services rendered.

Such salary may be fixed by the board of supervisors and the claim audited, although the services have been rendered.

Appeal by the defendant, John Lyon, as county comptroller of Nassau county, from ah order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 20th day of July, 1912, directing the issuance of a peremptory writ of mandamus.

John Lyon, for the appellant.

Felix Reifschneider, Jr., for the respondent.

The Commissioner of Agriculture quarantined a district' in Nassau county on account of rabies, and pursuant to the Agricultural Law called upon the sheriff of the county “to carry out and enforce the provisions of the said order and notice herein.” Section 96 of the Agricultural Law, as amended by chapter 255, Laws of 1911, authorizes the Commissioner to “call upon the sheriff, under sheriff or deputy sheriff, to carry out and enforce the provisions of any notice, order or regulation which he may make, and all such ” officers “ shall obey and observe all orders and instructions which they may receive from him in the premises. In all counties, the expenses incurred by the sheriff, under sheriff or a deputy sheriff in carrying out and enforcing the provisions of such notice, order or regulation shall be a county charge, to be audited and paid in the same manner as other charges by the sheriff, under sheriff or deputy sheriff.” The sheriff appointed the relator a special deputy sheriff “To act as Quarantine Inspector, on the Babies of Dogs, in the Town of North Hemp-stead,” and orally fixed his compensation at three dollars for each day employed. Thereupon the relator inspected the district and made disposition of dogs, his claim for compensation was approved by the sheriff, presented to the defendant, who transmitted it with his disapproval to the board of supervisors, who resolved that the claim shall “be audited and allowed. ” Did the board of supervisors have power to allow the claim ? The sheriff is a salaried officer. (Laws of 1898, chap. 588, § 3.) The sheriff may appoint an under sheriff (County Law, § 181) and deputies, and “any person may also be deputed by any sheriff or under-sheriff by written instrument, to do particular acts.” (County Law, § 182.) Hence, the sheriff was enabled to appoint the relator a special deputy for the purposes named in the appointment, although the characterization of him as a “ Quarantine Inspector ” is not literally correct. He acted as a deputy sheriff in what he did, and the board of supervisors was enabled to fix the amount of his salary. (Laws of 1909, chap. 16, § 12, subd. 5, as amd. by Laws of 1911, chap. 359.) Hence the board of supervisors and the sheriff had the power to make the appointment, and the

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board of supervisors was enabled to fix his compensation, but did not do so before the services were rendered. Although the resolution in form audited a claim, the result was to fix his compensation, and the final question is whether that could be done after the service had been rendered. The sheriff could not bind the supervisors to fix a compensation, nor could the appointee compel it. He served at the risk of the board deciding that he was unnecessary, and that the services could and should have been performed by the sheriff and .'his existing staff of assistants. But if the sheriff had the power to make the appointment, and the board omitted to. fix the compensation it was not beyond its power to do so. The appointment was at the will of the sheriff “to do particular acts.” The service was transitory and uncertain and its value dependent upon a variety of acts to be done day by day, and in such case it was convenient and fairly necessary that the supervisors should review them and in their discretion make suitable compensation-. It was necessary to clothe the relator with police power to do the particular acts in an official capacity, which was conferred in the terms of the appointment. Hence, he was not a deputy sheriff with the full measure of such officer’s authority. Under such circumstances it seems within the power of the board of supervisors to make' compensation for the same with the continuing right to judge of the 'necessity and value of the service. To deny this would disable the supervisors from compensating persons deputized by the sheriff to keep the peace in emergencies that precluded the prior action of the supervisors. It is true that the County Law (Laws of 1909, chap. 16, § 12, subd. 5, as amd. by Laws of 1911, chap. 359) provides that the board of supervisors “Have power to fix the amount and the time or manner of payment of the salary or compensation of any county officer or employee, except a judicial officer and the mode of appointment, number and grade of the clerks, assistants or employees in any county office,. notwithstanding the provisions of any general or special law fixing the amount of such salary or the time or manner of payment thereof, or providing for the mode of appointment, number or grade of the clerks, assistants or employees in any county office, or vesting in any other board, body, commission

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or officer authority to fix the amount of such salary or compensation or the time or manner of payment thereof or to provide for the mode of appointment, number or grade of the clerks, assistants or employees in any county office; and the power hereby vested in the board of supervisors shall he exclusive of any other board, body, commission or officer, notwithstanding . any general or special law. The salary or compensation of an officer or employee elected or appointed for a definite term shall not he increased or diminished during such term.” But in the nature of the case this does not take away the power of the sheriff to appoint persons to do particular acts as provided by section 182 of the County Law. The statute quoted provides for county officers and employees serving in the general administration of the law in the county, for whose administration the county is obligated. It vests the control of the county agencies in the ruling county body, and leaves it free to rejéct or to respect the action of the sheriff in emergency cases in designating a person to render aid. With the appointment of a person thus subordinated to the action of the hoard, no waste of public moneys may be apprehended, and no obligation can attach to the county by the act of one of its officers. A different rule would render the provisions of section 182 of the Comity Law inoperative save as the sheriff should personally make compensation. The question simply is whether the board of supervisors has discretionary power to compensate in such case where it has not initially commanded the service, and it is concluded that the power exists..

The order should be affirmed, with ten dollars costs and . disbursements.

Jenks, P. J., Cabe, Woodwaed and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.