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Conner v. City of New York

5 N.Y. 285 Court N.Y. English

Judges Mr. Justice Sanford has referred to so fully, and reviewed so judiciously, the authorities on the proposition under consideration, that it appears- unnecessary to re-examine them. My judgment accords with his conclusion, viz., that “ these authorities, with the nature of the duties and employment of a public officer, seem conclusively to show that such an officer has no property in the prospective compensation attached to his office, whether it be in the shape of a salary or fees.” This conclusion is decisive of the appellant’s claim.

Delivered by *Nug»les, C. J.

Contents

Majority

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Conner v. City of New York.

Headnote

Constitutional Law. — Title of Statute. — Salary of Office.
The act entitled 11 an act in relation to the fees and compensation of certain officers, in the city of New York,” passed the 10th December 1847, whereby salaries are giren to four public officers of that city, and the fees and emoluments of their respective offices are required to be paid into the city treasury, does not violate the constitutional provision, that no local bill shall embrace more than one subject, which shall be expressed in the title.
The fees and emoluments of a public office, are not property, within the meaning of the constitution, so as to prevent the legislature from giving a salary, in lieu thereof, and requiring them to be paid into the public treasury.
Conner v. City of Now York, 2 Sandf. 355 , affirmed.
Appeal from the general term of the Superior Court of the city of New York, where judgment had been entered in favor of the defendant, upon a verdict taken subject to the opinion of the court, upon a case to be made, with liberty to either party to turn the same into a bill of. exceptions. (Reported below, 2 Sandf. 355 .)
This was an action of assumpsit for money had and received, to recover back a sum of $10,000 paid by the plaintiff into the city treasury, under protest, and a threat of a criminal prosecution. The declaration contained the common counts; the defendant pleaded the general issue.
At the general election, held on the 3d November 1846, the plaintiff, James Conner, was elected to the office of county clerk for the city and county of New York; duly qualified; entered upon the performance of the duties of the office; continued to perform the same up to the time of the institution of this suit; and received the fees and emoluments thereof.
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*On the 10th December 1847, the legislature passed an act, entitled “an act in relation to the fees and compensation of certain officers in the city and county of New York;” whereby it was provided, that all fees, perquisites and emoluments of the surrogate, county-clerk, register, and certain other officers, for all official services rendered by them, respectively, should belong to, and be for the benefit of, the city and county of New York; and should be collected by them, and paid over to the city treasury; and that the officers named should receive salaries in lieu of fees, which salaries were fixed by the act, with a privilege to the board of supervisors of increasing them $500. Under this statute, the salary of the plaintiff was fixed at $2500 per annum; which was increased by the board of supervisors to $3000. It was also made the duty of the several officers named to keep an exact account of all the fees received by them; a transcript of which was to be transmitted to the comptroller, once a month. And in case any such officer should receive to his own use, or neglect to account for, in such mode as the supervisors might direct, any fees, perquisites or emoluments, or should neglect to render such accounts to the comptroller, or to pay over the same, he should be adjudged guilty of a misdemeanor, and punishable with a fine or imprisonment, and in addition thereto should forfeit his arrears of salary, and be liable to a civil action for the moneys received, and not accounted for and paid over.
On or about the 18th March 1848, a demand was made upon the plaintiff, for the payment of the fees, emoluments and savings of his office, received by him, subsequently to the 1st January 1848, and on or about the same day, the board of supervisors passed a resolution directing the district-attorney to take immediate measures to have the matter submitted to the grand jury for their action; and on or about the 25th March,
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complaint was made to the grand jury in accordance with such resolution.
*The defendant, afterwards, on the 27th March 1848, and the 29th April, in the same year, paid into the city treasury, the sum of $10,000, for the fees, emoluments and earnings of his office, from the 1st January to the 1st April 1848, protesting in writing against the legality of such demand, in the following words: “paid under protest, and through a threat of criminal prosecution by the board of supervisors.” The chamberlain gave the plaintiff a receipt therefor, to which was affixed a like protest; and it was understood and agreed, at the time of making such payment, that it should not prejudice the plaintiff’s rights.
The plaintiff brought this action to recover back the amount so paid; and on the trial, insisted that the act of 10th December 1847, was unconstitutional and void. A verdict was taken for the plaintiff, by consent, for $10,000, subject to the opinion of the court, upon a case to be made, with liberty to either party to turn the same into a bill of exceptions; and the court, at general term, - having entered judgment for the defendant, upon the reserved point, the plaintiff took this appeal.
Van Burén, for the appellant.
Hall, for the respondents.

Against the validity of tha “ act in relation to the fees and compensation ot

certain officers in the city and county of New York,” passed December 10th, 1847, it is objected, that, upon its face, it is a violation of the 16th section of Art. iii. of the constitution of 1846, which is in these words: “ No private or local bill which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.”

p. 273
. Admitting, for the purpose of the question only, that the act is local, it does not seem to be liable to the objection raised against it. The effect of the act is to change the compensation of the several officers therein mentioned, by giving them salaries, in lieu of the fees, perquisites and emoluments to which they had previously been entitled; and to dispose of those fees, perquisites and emoluments, by giving them to the city of New York, out of whose treasury the salaries were to be paid. All this relates to and embraces but one subject, to wit, the compensation of these officers, and this is expressed in the title of the act. The fees and compensation were one and the same thing, at the time of passing the act; and, therefore, only one subject is mentioned in the title. The existing compensation was taken away and another substituted, and all the details of the act relate to this change; it cannot be said, that one bill was necessary for the purpose of giving them the salaries, and another for disposing of the fees. Nor was a separate bill required for each of the officers; it might as well be said, that a local tax could not be laid, without as many bills as there were to be -tax-payers. Many individual persons *or things may be embraced within the same subject, within the meaning of that word in the clause in question.[1]

The design of the constitutional provision was, to prevent the uniting of various objects, having no necessary or natural connection with each other, in one bill, for the purpose of combining various pecuniary interests in

1 "Where the title of a local act expresses a general purpose, all matters fairly and. reasonably connected with it, and all measures which may facilitate its accomplishment, are germane to the title. People v. Briggs, 50 N. Y. 553 . It is only requisite, that the provisions should all relate to the same subject, and be essential to work out the legitimate purpose of the law, as expressed in the title. Wenzler v. People, 58 N. Y. 516 ; People v. Banks, 67 Ibid. 568 ; Ex parte New York and Brooklyn Bridge, 72 Ibid. 527 . A local act providing for the improvement of several different streets, in one district, is valid. Ex parti Van Antwerp, 56 N. Y. 261 .

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support of the whole, which could not be combined in favor of either by itself. It is plain to my mind, that the statute in question is not within the mischiefs which this provision was intended to remedy, and that the objection is, therefore, not well founded.

Another and the principal point urged in favor of the appellant is this: that the fees and emoluments of the appellant’s office were his absolute property, while he held the office; and that the legislature had no power to take this property from him and give it to the city of New York.

It is undoubtedly true, that private property cannot be taken for public use without just compensation; and equally true, that the private property of one individual cannot lawfully be taken, without his consent, for the use of another, either with or without compensation. The exigencies of government may justify the appropriation to its own use, of the prospective emoluments of an office, whether they be, or be not, the property of the incumbent; but if it be conceded that they are his property, such appropriation is substantially an exercise of the right of eminent domain; and in that case, no exigency can absolve the government from the obligation of paying their value to the owner. Upon the supposition that such emoluments are the property of the office-holder, a reduction of their amount, for the benefit of the public, is in effect taking them for public use; and upon this supposition, no salary can be diminished, during the incumbent’s term of office, and no officer’s fees can be reduced, during the same period, without paying an equivalent value. On the other hand, if such prospective emoluments can be lawfully taken by the state, and paid into the treasury, or reduced, by abolishing or diminishing the whole or any part of the fees *abk>wed by law, tike commencement of the incumbent’s term, it is only on the ground that

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such fees and emoluments are not the property of the officer.

Again, if the state may iake the prospective emoluments of an office, and apply them to the public use, without making compensation, because they are not the officer’s property, it may lawfully take the same thing, and apply it to the use of another individual, for the same reason. The plaintiff, therefore, must fail in his demand, unless he can establish that he would have been entitled to compensation from the state, if the legislature had directed the fees to be' paid into "the state treasury, instead of giving them to the city of New York. This was not pretended on the argument; it cannot be pretended, at this day, either with truth or plausibility. The legislature has always exéreised its control over the unearned emoluments of office, without question or doubt of its power, except in those special cases in which the constitution has forbidden its exercise.

By the constitution of 1821, the legislature was prohibited from increasing or diminishing the compensation of the governor, during the term for which he should have been elected. (Art. iii., § 4.) A similar provision is contained in the constitution of 1846, in regard to the governor’s salary (Art. iv., § 5), in regard to the lieuten-amt-governor (Art. iv., § 8), and in regard to the judges of the court of appeals, the justices of the supreme court, and the county judges. (Art. vi., §§ 7 and 14.) Their compensation can neither be increased' nor diminished, during their continuance in office. The manifest object of these prohibitions was to secure the independence of the executive and judiciary, and to prevent the exercise of undue influence by one of the great departments of th i government over the others.

Before these prohibitions were ordained, the power of increasing and diminishing the salaries of the governor and justices of the supreme court had been exercised at

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the pleasure of the legislature. In 1813, the annual salary of the governor was fixed, at $5000 (1 R. L. 527), and so remained until the 3d of * April 1821, when it was reduced to $4000, from and after the day of passing the act. (Oh. 240.) This was during the time for which Mr. Clinton was elected to the office. In 1813, the salaries of the chancellor and justices of the supreme court were fixed at $3500 each; in 1816, they were raised to $4500, and in 1820, they were reduced to $3500. These offices were held during good behavior. Before the year 1810, the clerks of the supreme court were compensated by fees; by the act of the 6th April of that year, they were required to account for and pay over their fees into the treasury, and were allowed salaries in lieu thereof; and it was well understood, that their compensation was greatly diminished by the change. It is unnecessary to refer to other instances of the exercise of this power; they were frequent, and their legality never questioned.[2]

This unquestioned exercise of power, until the adoption of the constitution of 1846, and its partial and limited prohibition by that instrument, leave no doubt of the legality of its exercise, in all cases to which the prohibition does not extend. Public offices in this state are not incorporeal hereditaments; nor have they tho character or qualities of grants; they are agencies. With few exceptions, they are voluntarily taken, and may at any time be resigned. They are created for the benefit of the public, and not granted for the benefit of the incumbent; their terms are fixed with a view to public utility and convenience, and not for the purpose of granting the emoluments during that period to the office-holder. It is proper, that the officer should have time to acquire experience in the discharge of his duties, and the term, therefore, should not be too short; a

2 People v. Burrows, 29 Barb. 89 .

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proper sense of responsibility to the people for the faithful performance of his duty, requires that the term should not be too long. The length of the term is regulated by considerations of this nature, affecting the public interest, but having no regard to the interest of the office-holder in the emoluments. These emoluments are prescribed and allowed by law, and may be *altered, increased, reduced, and regulated by law, at all times, except in the cases in which the constitution has expressly forbidden it. The compensation allowed by law is deemed an equivalent for the services rendered; one of the duties of the legislature is, to regulate the compensation, from time to time, so that it may be neither more nor less than an equivalent. To abolish the compensation, or to reduce it un- ■ reasonably, with intent to deprive the incumbent of his office, would be an abuse of legislative power. The present case affords no ground for such a complaint, and no such complaint is made; we are not called on to say whether the courts could afford relief against such abuse.[3]

The prospective salary or other emoluments of a public .office, are not the property of the officer, nor the property of the state; they are not property at all. They are like daily wages unearned, and which may never be earned; the incumbent may die or resign, and his place be filled, and the wages earned by another. The right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him.. They may be paid for in fees, at one time, in salary, at another, and either may be increased or diminished in amount, at any time, before they are earned. The constitution fixes the term of the plaintiff’s office, but it does b ot prescribe his compensation, nor guaranty

3 See Phillips v. New York, 1 Hilt. 483.

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that it shall remain during the term, as it was when he was elected. It leaves the subject to the legislature, and when the plaintiff accepted the office of clerk, he must be supposed to have known that the legislature had the power to regulate and change his compensation, as the public interests might require. These principles are settled and established by the cases referred to in the able and learned opinion delivered in the court below; and it is unnecessary to repeat or refer to them here. The judgment should be affirmed.[4]

The question in this action is, whether the statute passed the 10th December

1847, “in relation to the fees and compensation of certain officers in the city and county of New York,” is void.

I. The appellant claims that it is void, because passed in violation of Art. iii., § 16, of the constitution, which provides that “no private or local bill * * * shall embrace more than one subject, and that shall be expressed in the title.”

1. Does this act embrace more than one subject? In my opinion, it does not; and that subject is the compensation of certain officers in the city and county of New-York. This statute simply changes the mode of compensating four officers in that city and county, by giving them salaries instead of perquisites, and regulating the manner and consequences of such change. Separate and independent subjects are not united; so as to embarrass our legislators in understanding, and voting intelligibly upon them; - or so as to oblige them to vote for one measure of which they disapprove, to secure another of which they approve; or so as to combine different interests, and thereby pass an unjust or unwise law; which are the legislative evils this provision of the

4 Butler v. Commonwealth, 10 How. 402 ; Commonwealth v. Bacon, 6 S. & R. 322; Koontz v. Franklin County, 76 Penn. St. 154 .

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constitution, was intended to prevent; and surely the act in question is far removed from each and all of them. A subject, like a tree in material things, has a body and branches, and like a proposition in morals, incidents and consequences. A change in the manner of paying certain officers in the state, or in a county, is about as single a subject for legislation as can be selected; and how absurd and useless it would have been, in the present case, for the legislature to have repeated four times, in four different laws, the same title and provisions, with the only exception of the name of the office, and how equally absurd and useless, to pass a separate act, with a separate title, to regulate each of the incidents and consequences of the change.

2. Is this act private or local, in the sense of the constitutional *provision under consideration ? In my opinion, it is neither; but being satisfied, for the reasons above given, that it embraces but one subject, I will only say, that regulating the amount and manner of paying the officers, or any given number of the officers, of a county of this state, for their official services, when such services are rendered in, and form a part of the administration and execution of the laws of this state, and affect equally the whole citizens thereof, who come within their range, can neither be private nor local, in the view contemplated by the constitution.

II. The appellant insists that this act is void because it violates Art. i., § 6, of the constitution of this state, which declares that, “no person shall be * * * deprived of * * * property wdthout due process of law; nor shall private property be taken for public use, without just compensationand because it also violates Art. i., § 10, of the constitution of the United States, which provides that, “ no state shall * * * pass * * any law impairing the obligation of contracts.”

At the general election, on the 3d of November 1846, the appellant was elected “ county-clcrk for the city and

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county of New York,” for the period of three years from 1st January 1847, on which day, the appellant entered upon the duties of his office and continued to perform them. By the laws of this state, he was entitled, when elected, and when he entered upon the duties of his office, to certain fees, as a compensation for his official services, and the argument on his behalf now is, that these fees were his absolute property, while he held the office, and as the act of the legislature gave him an annual salary, for the last two years of his official term, and directed him to pay the fees earned during the same period into the treasury of the city and county of New York, for the use thereof, it took from him his property, in contravention of the constitutional provisions of this state, and the United States, above mentioned.

It must be observed, that the law was passed on the 10th of ^December 1847, to take effect on the 1st January 1848, and, consequently, did not interfere with any fees already received or earned by the appellant, hut was entirely prospective, and related to his right, if right it may be called, to receive the fees established by law for his official services, after the 1st of January following. The argument in his favor, therefore, if it has any force, must rest on the proposition, that he had an absolute, vested and indefeasible right of property in the fees prescribed by law for his official duties, and so full and perfect as to be beyond legislative control, during his official term. Such a proposition, in this country, where offices are not held by grant, nor bestowed for the benefit of the incumbent, but are created and regulated by the constitution and laws, for the benefit of the community, is, to say the least of it, startling, and in my opinion, exceedingly unsound. Before testing it, however, by reason and authority, it may be well to inquire, whether there is anything peculiar to the office in question, which distinguishes it

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from offices generally, in the feature under considera tion.

It was said on the argument, to have been created by the charter of the city of New York, and on that account was held forth as something different from offices established by the constitution or laws of the state. The constitutional and legislative history of this office has been fully and correctly given by Mr. Justice Sandeord, in his opinion in this cause, and shows, that it has lost its existence under the charter, and been ■recreated by the constitution and laws of the state, and that, in truth, the present office is a new and separate legal creation, and neither in name nor duties conforms to the old charter-office of “ common clerk of the city and I concur in his conclusion, that “ we must lay out of view the city charter, and all the vested rights supposed to be derived from that instrument.” This office stands on the footing of all other offices in this state of like character, so far as regards the power of the legislature to regulate its duties and fees; indeed, it is more intimately connected *with the judiciary and the administration of the laws, and less local in its duties, than any other similar office in the state — while the clerks of the other counties in the state keep the minutes of the proceedings and records of the supreme court, circuit courts, courts of oyer and ter-miner, county courts and courts of sessions in their respective counties, and record all deeds, mortgages and other papers relating to lands situated therein, the clerk of the city and county of New York only keeps the records and minutes of proceedings of the supreme court, circuit courts and courts of oyer and terminer held therein. (Laws of 1847, p. 338, § 65.) It is.to the fees of such an office, with such duties, that the appellant claims ne has an absolute, vested and indefeasible right; and the inquiry will now be made, whether such claim is founded in reason or authority.

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The duties and fees of the county-clerk of the city and county of New York are all prescribed by various acts of the legislature; in none of which, or in the nature of the subject, is there expressed or implied an intention not to alter or repeal them as occasion may require, or the legislature will direct; nor is there any provision in the constitution, limiting the sovereign power of the legislature over the subject. This view of the appellant’s pretensions appears to preclude the exist-edce of any principle, known or recognised under our institutions and laws, upon which he can claim to restrict the power of the legislature over the duties and fees of the office he happens to hold for the time being. There is, however, no necessity of enlarging on this branch of the case, for our judiciary have settled it. In Warner v. People ( 7 Hill 81 ; 2 Denio 272 ), it was held, that “the legislature may regulate and add to or diminish the duties or the fees of a constitutional office.” Under a power so unrestricted, it is obvious, that it is the right and duty of the legislature, whenever they deem the measure just and proper, to alter or abolish the fees of an office, or make any other disposition of them, and compensate the officer by salary, paid *either out of the public treasury or the fees of his office. All citizens who are elected or otherwise appointed to office, accept the official trust, with a full knowledge and understanding that they are subject to the power of the legislature in respect to the fees or compensation they are to receive, except where the constitution provides specifically otherwise, as in the ease of some judicial and other offices. This aspect of the subject entirely removes every pretence of an absolute, vested and indefeasible right to the prospective fees of an office, and exhibits the pretension of a right to exclude the legislature from interfering with them, during the official term of the incumbent, in a light, almost, if not quite, prepostero»0..
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Mr. Justice Sanford has referred to so fully, and reviewed so judiciously, the authorities on the proposition under consideration, that it appears- unnecessary to re-examine them. My judgment accords with his conclusion, viz., that “ these authorities, with the nature of the duties and employment of a public officer, seem conclusively to show that such an officer has no property in the prospective compensation attached to his office, whether it be in the shape of a salary or fees.” This conclusion is decisive of the appellant’s claim.

Judgment affirmed.

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