Olmsted v. . Meahl

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 272 This is a taxpayer's action. The courts of this state hold that at common law a taxpayer, as such, has no right of action against a public officer to restrain or prevent the waste of public funds or injury to public property, or to restrain a threatened illegal official act. (Altschul v. Ludwig, 216 N.Y. 459, 464;Admiralty Realty Co. v. City of New York, 76 Misc. Rep. 345; affd., on opinion below, 151 App. Div. 888; affd., 206 N.Y. 110.) Such an action may be maintained pursuant to the provisions of section 1925 of the Code of Civil Procedure, or section 51 of the General Municipal Law, (Cons. Laws, ch. 24) and is recognized by section 28 (formerly 27) of the Civil Service Law. The authority therefor, if at all, must be found in such statutes, or one of them. (Greene v. Knox, 175 N.Y. 432; Steele v. Village ofGlen Park, 193 N.Y. 341; Slavin v. McGuire, 205 N.Y. 84.) Section 1925 of the Code of Civil Procedure provides: "An action to obtain a judgment, preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state may be maintained against any officer thereof, or any agent, commissioner, or other person, acting in its behalf, either by a citizen, resident therein, or by a corporation who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein * * *." Section 51 of the General Municipal Law provides that an action may be maintained as therein stated against "All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, * * * to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation * * *." *Page 275 Both statutes clearly confine the right to maintain an action as by its terms provided, to one against officers, agents, commissioners, or other persons acting, or who have acted, for or on behalf of any county, town, city, village or municipalcorporation in this state. The right to maintain an action is not given against an officer, agent, commissioner or other person acting for and on behalf of the state. We must in this case, therefore, first determine whether the defendant Meahl, in the performance of the proposed acts mentioned in the complaint, would be acting in behalf of the county of Erie or the state of New York. The county clerk is a constitutional officer. (Constitution State of New York, art. 10, § 1.) Although a constitutional officer he is, while in the performance of his general duties as county clerk, a local, viz., a county officer. It is also provided by the Constitution that "Clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law." (Constitution of the State of New York, art. 6, § 19.) County clerks are also clerks of the County Courts. The right of the county clerk either personally or through deputies to be clerk of the courts is constitutional, and the legislature may not transfer any of his essential functions to a different officer chosen in a different manner. (People exrel. Wogan v. Rafferty, 208 N.Y. 451.) The county clerk as a clerk of the courts is a state officer and in the performance of his duties as such is performing the duties of a state officer. In so acting he is a part of the judicial system of the state. Such system is not bounded by county or other lines which subdivide the state. The legislature, pursuant to the Constitution, has provided by law for the appointment of special deputy clerks. Section 169 of the County Law (Cons. Laws, ch. 11, amd. L. 1915, ch. 345) provides: "In every county other than the counties of Queens, Westchester, Dutchess, Orange *Page 276 and Rockland the county clerk may, from time to time, by an instrument in writing, filed in his office, appoint, and at pleasure remove, one or more special deputy clerks to attend upon any or all of the terms or sittings of the courts of which he is the clerk, * * *. Each person so appointed must, before he enters upon the duties of his office, subscribe and file in the clerk's office the constitutional oath of office; and he possesses the same power and authority as the clerk at any sitting or term of the court which he attends, with respect to the business transacted thereat * * *." The decisions of the courts are numerous that in substance sustain the conclusion that a county clerk when actually engaged as a clerk of the courts and his special deputies acting in his behalf as such court clerks are part of the judicial system of the state and state officers. (Quin v. Mayor, etc., of N.Y., 44 How. Pr. 266; affd., 53 N.Y. 627; Whitmore v. Mayor, etc.,of N.Y., 5 Hun, 195; affd., 67 N.Y. 21; Landon v. Mayor,etc., 39 Superior Court, 467; People ex rel. Phelps v. Courtof General Sessions of the County of New York, 13 Hun, 395;Taylor v. Mayor, etc., of N.Y., 67 N.Y. 87, 93; Stewart v.Mayor, etc., of N.Y., 15 App. Div. 548; People ex rel.Gilchrist v. Murray, 73 N.Y. 535; Slavin v. McGuire,205 N.Y. 84; Schieffelin v. Komfort, 212 N.Y. 520.) In County of Albany v. Hooker (204 N.Y. 1), Chief Judge CULLEN, in his concurring opinion, said: "The Taxpayers' Act * * * authorizes such actions against only municipal corporations and their officers, not against state officers. Hence an action to restrain the expenditure of state moneys on the highways mentioned in the complaint, if such expenditure is illegal, can be brought by the people of the state alone." (p. 19.) In Matter of Reynolds (202 N.Y. 430, 441) the authority to bring an action as a taxpayer under the statutes quoted was considered where the money to be expended was city money and the officers whose action was sought to be controlled *Page 277 acted locally and were appointed by local authority, and the court say: "Who are the officers whose illegal acts may be restrained? Only those `acting or who have acted for or on behalf of' the municipal corporation. The defendants, the city board of elections, doubtless are local officers, but no relatiou of principal and agent, or of master and servant, exists between them and the city. [Quoting authorities.] They did not act on behalf of the municipal corporation, but for the public in the control and direction of the machinery of the general elections of the state. * * * The intention of the Taxpayers' Acts is doubtless to afford the taxpayers redress for the waste, fraud and peculations of public officers, but it was never intended thereby to confer on courts of equity jurisdiction over a subject which had always been excluded from their cognizance." It is clear, therefore, upon authority that the county clerk and each of the special deputy clerks appointed by him in the performance of their duties as clerks of the Supreme Court or as a clerk of the County Court are state officers performing state functions and not subject to control by action pursuant to the Taxpayers' Acts or either of them. There remains the narrow question, whether the county clerk in appointing his special deputy clerks, acts in behalf of the courts and the state, or in behalf of the county in which he is elected the county clerk. The constitutional designation of the "clerks of the several counties" to act as clerks of the Supreme Court is descriptive of the persons designated. It is to be noted that a county officer is so designated and that a person selected by the electors of the county should be called upon to perform the duties of that office. As we have seen, the county clerk is a county officer, while the same person acting as clerk of the Supreme Court is a state officer. The former position he holds by election, the latter by constitutional designation. The positions are separate — one local and the other statewide. The latter *Page 278 position is not statewide so far as the place in which the incumbent exercises jurisdiction or as regards the source from which he obtains his compensation. It is only statewide in the very acts that constitute a part of the judicial system. The county clerk should not, therefore, be considered as acting in his capacity as a state officer except as he performs acts that are in themselves a part of the judicial system. The state in the maintenance of its judicial system relies upon the counties to provide the necessary assistants for the clerk of the court, as it relies upon them to provide places in which to hold the courts and for heating, lighting, and generally maintaining the same. It is impossible in the large counties for one person to perform personally all the duties required of a clerk of the courts. The legislature has expressly provided that the county clerk shall appoint deputy clerks to attend upon the terms and sittings of the courts for which he is constitutionally designated as clerk. While the special deputy clerks are state officers, the act of appointing such deputies as provided by statute is not in itself a state function any more than the appointment of policemen by the board of trustees of a village pursuant to the Village Law (Cons. Laws, ch. 64) or the appointment of policemen and firemen by the commissioners of public safety of second class cities pursuant to the Second Class Cities Law (Second Class Cities Law, article 9) and many other acts of boards of supervisors, sheriffs, district attorneys and municipal officers that are incidentally and collaterally connected with the work of the state judicial system. We repeat that the power to make the appointments is in terms given to the county clerk and not to clerks of the courts. The munificent purposes of the Taxpayers' Acts will be best subserved if the county clerk in the appointment of special deputy county clerks is deemed to be acting as a local officer. The appellants state in their brief that their only contention in this court is that the action will not lie because the *Page 279 defendant Meahl upon the facts alleged in the complaint has not acted and was not acting as a county official. We are of the opinion that a county clerk in the appointment of his special deputies is performing a duty expressely imposed upon him by the legislature to be performed in his capacity as a county officer. In view of the statement in the appellants' brief it is unnecessary for us to consider the other questions that have been urged or suggested in the courts below except to say that they do not require a negative answer to the question submitted herein. The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative. HISCOCK, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur; WILLARD BARTLETT, Ch. J., absent. Order affirmed.