People ex rel. Bacon v. Board of Supervisors — 45 N.Y. Sup. Ct. 373

Majority

p. 373

THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. BACON, Appellant, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF KINGS, Respondent.

Headnote

Boa/i'd of supervisors — 1875, chap. 483 — power of, to fix compensation of employees in district attorneys’ offices — when it may be fixed by agreement without an excess resolution.

August 7, 1877, tlie board of supervisors of tbe county of Kings passed a resolution fixing tbe salary of tbe chief clerk in tbe district attorney’s office at $3,000 a year. On November eigbtb of that year tbe board adopted a resolution to raise for tbe current fiscal year a certain sum for tbe salaries of tbe district attorney, bis clerks, etc., wbicb sum of money was insufficient to pay these officers tbe salaries fixed by the prior resolution. Tbe district attorney, who bad just been elected, made a list of bis clerks, and of tbe salary each was to receive, including bis own, tbe sum of which just equaled tbe amount raised by tbe board. He appointed tbe relator chief clerk, at a salary of $1,500 a year, and tbe relator accepted tbe appointment and drew the salary monthly at that rate, and gave receipts therefor.

Thereafter tbe relator, claiming to be entitled to tbe difference between the salary as fixed by tbe resolution of August seventh and that actually paid to him, sought to compel tbe board of supervisors to pay this difference to him: Held, that bis application was properly refused.

That tbe board bad authority to fix tbe number, grade and compensation of tbe employes in tbe office of tbe district attorney, under chapter 483 of 1875.^[1]

That tbe acts of the board, tbe district attorney and tbe relator amounted to a contract as between them, and tbe amounts received by tbe relator thereunder were in full for all services rendered by him.

Appeal from a judgment in favor of tbe respondent, entered upon a decision of Mr. Justice Cullen, after tbe trial of issues arising upon tbe return to an alternative writ of mandamus.

Tbe writ commanded tbe respondent to audit and pay relator’s claim for $14,398.31, or show cause wby tbe writ ought not to be obeyed.

On tbe 7tb day of August, 1877, tbe board of supervisors passed a resolution, of wbicb the sixth section was as follows:

“ That tbe salary or pay of tbe chief clerk in tbe district attorney’s office be, and tbe same is hereby fixed at tbe sum of three thousand dollars per annum.” Tbe salaries provided for in this resolution to be paid to tbe district attorney, bis deputies, clerks and officers, amounted in the aggregate to over $26,000.

p. 374

On. the eighth day of November, in the same year, the board adopted another resolution by which it was determined to raise by taxation in the then current fiscal year the sum of $22,000 for that purpose.

Isaac S. Oatlin, Esq., who had just been elected district attorney,, thereupon made out a list of his deputies, clerks and officers, and set opposite the name of each the salary he was to receive, the aggregate-of the salaries, including his own, equaling the unexpended balance-of the $22,000 to be raised for that purpose.

Mr. Gatlin informed the relator that he intended to appoint him chief clerk, at a salary of $1,500, which was the amount set opposite his name. The relator accepted the position on the 1st of January, 1878, at the rate of compensation mentioned.

The list was sent to the county treasurer, and the salaries marked upon it were paid to the several persons named, relator receiving $1,500, in monthly payments, and giving his receipts therefor.

On the 24th day of January, 1884, the relator presented a bill to the board of supervisors, in which he claimed that up to August, 1881, he was entitled to receive $5,000 per year, and the amount of such bill was the difference between $5,000 and $1,500 per year, with interest. The claim was rejected, whereupon the alternative writ, was issued. "Relator did not present his bill to the county auditor, and the latter never passed upon it. At the trial only $3,000 was insisted upon as being the rate at which the relator ought to have been paid yearly.

Judgment was rendered in favor of the respondent, dismissing the writ, with costs.

Jaynes Troy, for the relator.

William G. Cooke, for the respondent.

No doubt can be entertained, I think, but that the general law (chap. 482 of Laws of 1875) gives the board of supervisors of Kings county power to fix the number, grades and compensation of the employes in the office of the district attorney.

Chapter 544 of the Laws of 1857, limiting the power of appointment in the district attorney to one clerk at a compensation of not exceeding $1,000 per annum, and chapter 111, Laws of 1866, were-both merged in the general law.

p. 375

The board liad power to fix the compensation of the relator, and in August, 1877, did fix the salary for the office of chief clerk, which relator filled at $3,000 per annum. This wás done by resolution in the usual way, and if nothing has been since done to change it, the compensation is to be made at the rate of $3,000 per year. It seems clear that a change was made by force of the subsequent events in respect thereto. No formal fixing of number of clerks or compensation can be necessary. JBoth a corporation and those who deal with it can be bound by acts done.

In the fall of 1877 there was elected a district attorney for Kings county. Immediately after his election there was by resolution of the board of supervisors a reduction made in the sum which was to be raised for the office for the year beginning January 1, 1878. The case does not show the fact that this reduction was made known to the district attorney, but it does show that the district attorney appointed the relator as chief clerk, at a salary of $1,500 a year. That he so told the relator, and he accepted the appointment at that rate. That the force in the office was all made to conform to the reduction by the supervisors, and that the list of clerks and assistants were returned with the salary to each, as made by the district attorney, and using up just the sum limited by the board. The relator. was on the list at $1,500 per annum. The reduced amount was raised by tax and no more. The relator was paid for his salary after this rate for the three following years without an objection. If this was a transaction between two individuals the proof would be decisive of a new contract. The salary was one which the supervisors could fix. They fixed an entire amount for the office. The chief officer who made the appointment returned the plaintiff as one employed at $1,500 a year, and they raised and paid his salary after that reduced rate. It is not the case where an official charged with the duty of appointment only undertakes to charge the corporation. The supervisors can fix the rate, and the objection is only one of form and not of mistake. It was a new contract as between these parties, and this relator has been paid in full for his services.

Judgment against him should therefore be affirmed, with costs.

Dtkman and Pbatt, JJ., concurred.

Judgment affirmed, with costs.