Fitch v. Mayor — 1 N.Y. St. Rep. 228

Majority

p. 228

Fitch v. Mayor, etc., of the city of New York.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

1. Office ahd Officer—Who are public officers of New York—Bulesas to.

An examiner in lunacy appointed by the department of charities and corrections of New York city is an officer of the city; so also is a sanitary inspector appointed by the board of health of said city. These two offices-cannot be held by the same person (§ 55, chap. 410, Laws 1883). One who-holds the two offices can only recover the salary of that to which he was first appointed.

3. Public office—What is. ' ■

A public office is a public charge or employment with the right to take-the fees and emoluments belonging to it.

Case agreed upon and submitted without an action.

John M. Bowers, for plaintiff.

John J. Townsend, Jr., for defendant.

The plaintiff held the position of examiner in lunacy under an appointment made by the department of Charities and Correction, for which he received a compensation of §37.50 per month. While he held that position he-

p. 229

was appointed a sanitary inspector by the health depart^ ment in the vaccinating corps, for which, if his appointment was lawful, he was entitled to receive compensation at the rate of $100 per month. Under that appointment and for the services performed by him, his compensation amounted to the sum of $119.98 Payment of each of the salaries was by the charter to be made out of moneys raised by taxation upon the property of the taxable inhabitants of the city.

The payment of the amount demanded by the plaintiff has been resisted upon the ground that he was an officer of the corporation of the city in holding the position and exercising the functions of examiner in lunacy. If he was such officer then he has no legal claim for salary as an inspector in the vaccinating corps of the health department, for by •section 59, chapter 410 of the Laws of 1882, it has been provided among other things that “no member of the common council, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation, shall be, or become directly or indirectly, interested in, or in the performance of any contract, work, or business, or the sale of any article the expense, price, or consideration, of which .is payable from the city treasury, etc.” By preceding sections of the same act provision has been made for the distribution of the powers of the city government. The legislative authority was vested in the board of aldermen, and the •executive power in the mayor and the officers of the departments. Id., sections 29, 30. And the different departments were declared and provided for by section 34 of the same act, and among these departments are those of Charities ■and Corrections, and the Health department. In these departments defined portions of the government authority •of the city has been vested. While they are distinct and •separate in their powers and functions, they are still classified and provided for as different departments of the government of the city. The heads of each department have also, by section 48, been empowered to appoint and remove •all chiefs of bureaus except the chamberlain, and all clerks, officers, employees and subordinates, in their respective departments, except as it was otherwise specially provided. And the functions and duties of all officers, clerks, employees and subordinates in every department, subject to the same exception, with their respective salaries, are declared to be such as the heads of the respective departments shall designate and approve. It was under this general authority that the plaintiff received his appointment as examiner in lunacy. It is not shown to have been a position subject merely to the orders or directions which, from time to time, might be given by the head of the department, but it was a position whose functions and duties were to be

p. 230

defined by the head of the department, and the appointment-was necessarily of a somewhat permanent character, vesting-the appointee with the power to exercise his judgment and skill, within the limits of the appointment. What was conferred upon him was a portion of the authority vested in-the department. He was not merely an attendant, servant, or employee, but a person selected to exercise authority and. discharge the duties appropriate to his position, and that constituted him an officer of the department in which he-had been appointed. For an office has been defined to be “a public charge or employment, with the right to take the-fees and emoluments belonging to it.” It is an authority to exercise legal or public functions, in the service and for the benefit of the public. People v. Nostrand, 46 N. Y., 375 .

And the plaintiff as an examiner in lunacy was vested, with such fmictions and authority. He was accordingly an officer of the department in which he had been appointed;, and officers of such departments were designed to be-included within the general language of section 59 of this act. Provision was previously made for the existence of the officers, the power by which the appointment should be-made, and the functions and duties to be exercised, and after that had been done this general prohibition contained in section 59 was added. And from its position and relations, as well as the language used, it was evidently intended to include the officers previously mentioned, or referred to in the act.

By section 588 of the same act the board of health was-empowered to appoint a certain number of sanitary inspectors, and under that this appointment of the plaintiff as-inspector in the vaccinating corps seems to have been made. It is also for the reasons already given, as well as those-disclosed by this section of the act, apparent that it was an office in one of the departments of the government of the-city. The functions and duties, as well as the rights appertaining to the position, rendered it an office within the authority which has already been stated. And by section 55 .of the act it has been declared that “no person shall, hold two city or county offices except as expressly provided in this act.” And no exception including either of these-offices was made by the act from this general prohibition. By his second appointment, if it could have been legally made, the plaintiff would have become directly interested in the performance of work, the expenses of which were to-be payable from the city treasury, and as he continued to-retain his preceding office under the department of Charities and Corrections, he was _ inelligible _ to official employment as a sanitary inspector in the vaccinating corps of the-health department.

p. 231

The case of McDonald v. The Mayor ( 32 Hun, 89 ), has-been relied upon as sustaining the plaintiff’s right to comEensation while he discharged the duties of inspector in the ealth department. But, when justly considered, it lends-neither countenance nor assistance to this position, for the compensation allowed to the plaintiff in that action was not-for a service rendered, either as an officer of the municipal government, or one of its departments, but the service was-rendered for the district attorney of the county, and was-chargeable to the city as the county, and not as the city. This case is brought by these facts more directly, and especially within those of McAdam v. The Mayor ( 36 Hun, 340 ), and Mullaly v. Mayor ( 3 Hun, 661 ). The case last-decided is especially applicable to this controversy, and by the principle which it settled in the construction of this-prohibitory provision of the charter, the plaintiff is excluded from the right to claim the compensation for the services rendered by him as an inspector in the health department. The policy of the charter upon this subject was to separate- and distinguish the officers of one department from those appointed in and exercising their authority and functions-in another. It was designed to abrogate abuses which previously had existed, and it should be liberally construed to - produce that result. As it has been made a portion of the-charter, it was intended to include the officers to which reference was previously, as well as subsequently, made in it. And by the construction which should be placed upon it, and upon the prohibitory language of this section, the plaintiff has no right to the compensation which is the-subject of controversy in this case. Judgment should therefore be ordered in favor of the defendant, with costs..

I concur, Brady, J.