In re Becker

This is an application for a peremptory writ of mandamus, made by the court crier of the county of Nassau, directed to the county comptroller of Nassau county, commanding him to sign a warrant for the payment to the said court crier of a claim which had been duly audited, allowed, and directed to be paid by the Unanimous vote of the board of supervisors of the said county, which warrant was presented to the county comptroller for his signature. The claim made by the said court crier, the relator herein, is for traveling fees at the rate of five cents per mile, allowed to the court crier by subdivision 4, section 240, of the County Law, as amended by the Laws of 1910, for each mile traveled by him in going to and returning from the place of attendance at courts of record within the county. The county judge of Nassau county, under and pursuant to the power vested in him by the provisions of the Judiciary Law, as hereinafter more fully set forth, did on December 27, 1910, appoint the relator herein to the position of court crier for the courts of record in the county of Nassau. This fact was communicated to the board of supervisors of said county by the said county judge, with the request that the salary of the said court crier should be fixed at the rate of $1,200 per annum in full for all services rendered. On December 27, 1910, the said board of supervisors unanimously adopted a resolution fixing the salary of the said court crier at the rate of $1,200 per annum, to be payable monthly in the same manner as other county employés are paid. Subsequently and under a similar resolution the compensation of the said court crier was fixed at the sum of $1,300 per annum.

It is conceded that the county judge, in his request to the board of supervisors, requested that the salary of the said court crier., the relator herein, be fixed at $1,200 per annum, “in full for all services rendered,” which request was before the said board and was taken fully into consideration by them at the time of fixing the amount of said salary. The claim of the relator herein is for $1,166.20, being for traveling fees from January 6, 1911, to and including the 28th day of November,

[1] It is claimed by the said comptroller that the payment to the court crier of traveling fees at the rate of five cents per mile would be, in effect, additional compensation, to which he is not entitled, as he is not a per diem employe. The contention of the comptroller that the matter of mileage applies only when the court crier’s compensation is fixed at a per diem rate is to my mind untenable. It might have had some application prior to the 1910 amendment, but since the amendment went into effect eliminating the per diem compensation payable to criers, and vesting in the board of supervisors the power to fix the compensation of such .employes, I am satisfied that that contention is without merit. The provisions of law applicable to this controversy are as follows:

County charges: Section 240, subdivision 4, chapter 16, of the Laws of 1909, reads as follows:

“The compensation of the criers of the courts of record within the county for attendance thereat, at three dollars per day and also traveling fees, at the rate of five cents per mile, for going to and returning from the place of attendance except in the county of Queens where the crier shall receive a yearly salary of twelve hundred dollars payable monthly by the county.”

And section 240, subdivision 4, chapter 34, of the Laws of 1910, provides as follows:

“The compensation of the criers of the courts of record within the county for attendance thereat, and also traveling fees, at the rate of five cents per mile, for going to and returning from the place of attendance.”

. And the Judiciary Law: Section 365 of the Laws of 1909, chapter 35, provides as follows:

“The crier appointed by the county judge of each county, except Kings and Erie, to be crier for the courts of record held in his county is entitled to compensation fixed and to be paid as prescribed by law. * * * ”

“The crier appointed by the county judge of each county, except Kings and Erie, to be crier for the courts of record held in his county is entitled to a compensation to be fixed by the board of supervisors and to be paid as prescribed by law. * * * ”

After a careful reading of these sections of the County and Judiciary Laws, applicable hereto, and the authorities, I am convinced that it was the intention of the Legislature that the traveling fees were intended to be in addition to. the compensation to be fixed by the board of supervisors, not as additional compensation, but to cover the expenses of traveling. It will be noted that the statute provides for compensation to be paid to court criers and also traveling fees. It is in the conjunctive, and, I am satisfied, means compensation and a sum additional to cover traveling expenses. It is claimed by the county comptroller, which statement is verified by members of the board of supervisors in affidavits submitted by them, that it was understood by them, at the time of fixing the said court crier’s compensation, that said compensation was to be in full for all services rendered, and that the said court crier was not to be paid any sum for traveling expenses. It is conceded that the request of the county judge, in notifying the board of supervisors of the appointment of the said Becker as court crier and that the said board fix his compensation at the rate of $1,200 per annum "in full for all services rendered,” was before them. But even this statement, appearing in the request made by the county judge, to wit, “in full for all services rendered,” could not deprive the relator of his right to traveling fees as fixed by the statute. The said board of supervisors had full power to fix the amount of the compensation, and when they did so it became as binding as though it had been fixed by the Legislature itself, and I am also satisfied that even they did not have the power or authority to alter, vary, or eliminate the provisions of the County Law as to the traveling fees which were directed to be paid to the court-crier, and that the said court crier, the relator herein, is as much entitled to the said fees as if a provision for them had been incorporated in the resolution adopted by the said board in fixing the compensation; in other words, that the statute providing for traveling fees acted automatically and attached itself to the position as soon as it had been filled by appointment thereto, and that no further act was necessary to confer upon the incumbent the right to the traveling fees as aforesaid.

If it should be held that the board of supervisors had power to overrule the provisions of the statute as to the payment of traveling fees, it would in effect, to my mind, be countenancing a usurpation by them of the functions of the Legislature, which, of course, could not be permitted. The board of supervisors had no power whatever to change the effect of the statute or to overrule its provisions as to the traveling fees to be allowed. Their power under the statute was exhausted when they fixed the compensation of the court crier, and the statute as to the fees for traveling expenses had acted automat

[2] I am satisfied that the acceptance and discharge of the duties of the office of court crier by the relator herein, under the said appointment, was not a waiver of the statutory provision as to traveling fees, and did not constitute an agreement by him to perform the duties of the office for the compensation named, without traveling fees, for the reasons heretofore stated.

[3] The board having the power to fix the compensation of the court crier cannot reduce or cancel the amount expressly fixed by law to be paid such official as traveling fees or make a binding contract with the appointee to perform the duties of the office and to eliminate the fees expressly provided for by the statute. See People ex rel. Satterlee v. Board of Police, 75 N. Y. 38 , and also Kehn v. State of New York, 93 N. Y. 291 . ■ I am convinced that the law contemplates that the court crier shall receive the salary fixed by the board of supervisors as compensation, and .in addition thereto an extra sum, at the rate of five cents per mile, for traveling expenses for going to and returning from the place of attendance, the latter amount not by any way of additional compensation, but for traveling fees, as provided for by the statute. I am also satisfied that the said county comptroller had no discretion to exercise in this matter, and that he should have signed the said warrant directing that the amount involved herein be paid to the court crier, the relator herein. The application for a peremptory writ of mandamus is hereby granted.

Application granted.