Fellows v. Mayor of New York

Beady, J.: The question presented in this case is, whether the plaintiff was or was not a State officer while holding the position as assistant district attorney. It is conceded that the district attorney is a State officer. It could not well be questioned. (Rev. Stat., vol. 1, p. 96 [Edm., vol. 1, p. 98, § 15].) The plaintiff was appointed by that officer under the provisions of the Revised Statutes authorizing the appointment of all assistants, etc., by the body, board or officer by which or to whom they shall be respectively subordinate, in all cases in which the appointment is not specially provided for. (i Rev. Stat., 116, § 5.) The salary of the district attorney is fixed by the supervisors and paid by the county. (§ 3, chap. 441, Laws 1851.) In 1868 (chap. 854, Laws 1868, p. 2025) the legislature recognized the assistant district attorneys in the act making provision for the government of the county of New York, and limited the number from the 1st January, 1868, to three. Their duties in this county are not, it would seem, specifically set forth by statute, but they are sufficiently known and defined here to warrant this court in taking judicial .notice of them. The statutes in reference to these officers do not always state the duties. (See Laws 1857, chap. 409; Laws 1866, chaps. 8, 734; Laws 1872, chap. 587.) The latter act provides that these officers are to take the constitutional oath of office, attend all criminal courts, assist in all prosecutions for crimes and offenses, appear before grand juries, and perform the same duties before juries as are by law imposed upon the district attorneys. The act does not, however, apply to this county, its design being to create such officers in counties with a population over 70,000, and not to affect counties where the appointment of assistants was then authorized by law. The powers thus conferred upon the officers named are those which are exercised by the assistants in this county, and their services, in [486] consequence of our large population, and the numbers of criminals who come within the borders of our city, from places too numerous to mention, are not only valuable but indispensable. They are connected with and make a part of the department of an officer of the State, connected with its judicial system, and performing many of his duties, with the same effect as if he discharged them personally. They are his assistants, and not officers of the city or county. It is true that the salary given them is paid by the county, but this does not convert them into county officers, any more than the payment of the salary of the district attorney makes him such an officer. They are, it may be said, no less district attorneys because called assistants. They help to discharge the duties of the office, to administer the criminal laws. (See People ex rel. Buckley v. Benton, 29 N. Y., 534.) When provision is made for the government of the county of New York, the salary of these officers being a part of it, in virtue of their office, and the relation it bears to the department to which they belong, is ex necessitate included. They were not, therefore, within the provisions of chapter 583 of the Laws of-1871, authorizing (§ 3) the board of apportionment to regulate all salaries of officers and employes of the city and county governments. The classes subject to this provision are thus correctly described by Judge MoNbll : “ The officers whose salaries were brought within the regulating power of the board of apportionment, were intended to be such as formed a part of the political government of the 'city and county, and who were connected with the executive or legislative departments, and not such as were a part of the judicial system of the State ; otherwise, the legislature would not have limited it to officers of the government, but would have.extended it to all officers whose salaries were paid out of the city or county treasury. (Landon v. The Mayor, 49 How. Pr., 218 ; see, also, Whitmore v. The Mayor, 12 S. C. N. Y. [5 Hun], 195.) There is no force in the suggestion that, unless the plaintiff was connected with the county government, his salary was never legally fixed at the rate of $10,000. He was connected with the county government. This cannot be disputed, but it was in relation to the judicial system of the State that he was thus connected, in the same manner as his superior officer, the district attorney, is. [487] The salary of the latter has always been, paid by the city or county. (See 1 R. S., 383, § 95 ; act of 1851, supra.) This case is not analogous, therefore, to the case of Dolan v. The Mayor (13 S. C. N. Y. [6 Hun], 506). The employment of the plaintiff in that case was by authority of the county. In this case the employment was by authority of the legislature. The judgment is right, and should be affirmed. Ordered accordingly, with costs. Davis, P. J.: Both of my brethren have given this case very full and elaborate consideration. It is only necessary that I should assign, briefly, my reasons for concurring in the result reached by my brother Bbadt. First. It is very clear that, by “ statute, the district attorney of the city and county of New York is not an officer of the county government, but a State officer” and the fact that-his compensation is payable out of the treasury of the county makes no difference with his legal status in that respect. The respondent was an assistant district attorney. The functions and duties of his office were the same as those of the district attorney. He was not appointed nor was he removable by any officer or board of the county government, but, -in the absence of any statute directing the mode of his appointment or removal, the district attorney was clothed, by a general provision, with full power over that subject. (1 R. S., 116.) The existence of his office has been recognized in several statutes. (Laws of 1868, chap. 854; Laws of 1870, chap. 382.) His salary was fixed by the legislature by the introduction into chapter 382 of the Laws of 1870 (in the legerdemain form of legislation then much in use), of a provision declaring that “ the assistant district-attorneys of said county shall receive the same annual salary as that now paid to the city judge,” which happened then to be the sum of $10,000 per annum. The board of apportionment, by the third section of the act entitled “ An act to make provision for the local government of the city and county of New York,” passed April 19, 1871 (chap. 583 of the Laws of 1871), were empowered to regulate all salaries of officers and employes of the city and county of New York, and that board, by resolution [488] passed May 15, 1871, resolved that such salaries be reduced at the rate of twenty per cent per annum, to take effect on the first day . of June, 1871. The power given by the act only applied to the salaries of officers and employes of the city and county governments. The board had, therefore, no authority over officers of the State government, whether their duties were local1 to the county or their salaries paid out of the county treasury or not. Whether an office is one of the county, or of the State government is purely a question depending upon its classification by law. I think it is manifest, under the statute above referred to, that the district attorney himself is an officer of the State government. He is classified among the judicial officers of the State, and no reason exists for holding that his assistants, who possess the same functions and perform the same duties, should not be classified, by operation of the same statute, in the same manner. They do not belong to nor form any part of the county government, but take rank as officers of the State government for the purpose of enforcing the laws of the State within their territorial jurisdiction. The mode in which their salaries are to be paid, and the location in which their duties are to be performed, are mere incidents neither defining nor affecting their legal status as public officers. Hence the fact that the statute gave the board of apportionment power to regulate the salaries of officers and employes of the city and county of New York, did not affect the respondent, because he was neither an officer nor an employe of the city or county government. Secondly. It is argued that if this be so, the salary of the respondent was not lawfully increased by the act of 1870, but remains as previously fixed by the board of supervisors, and therefore no recovery can be had. This question hinges upon the constitutional power of the legislature to enact the provision above recited as part of a local act, entitled “ An act to make provision for the government of the county of New York.” Although the assistant district attorneys are officers of the State government, yet a provision of law affecting the salary of such officers in a particular county is local and not general legislation, and therefore it is obnoxious to the constitutional inhibition, unless it is fairly within the subject embraced in the title of the act. A general provision affecting all the district attorneys or assistant district attorneys of the State, [489] would be a general law and its inclusion in a local bill would not, within tbe decisions of the Court of Appeals, render it unconstitutional. In The People v. McCann (16 N. Y., 58), the court held that general provisions are not rendered void by reason of their being contained in some act with other provisions of merely local application, although the title refers to the latter provisions only, and this decision was reiterated in Williams v. The People (24 N. Y., 405). But the provision in question only affects officers of a particular locality, and therefore must be deemed local in its character. The Constitution requires that the subject only of a local act shall be expressed in the title, and not its objects, or details. I think the subject, as expressed in the title of this act, does embrace the object covered by the provision under consideration. The subject of the act is the making of provision for the government of the county of New York. It is part of the objects of that government, to raise money and apply the same to the payment of the salaries of such of the officers of the State government, who reside and perform their function within the county, as the legislature have seen fit to require to be paid by the county. Hence the act making provision for the government of the county may properly embrace provisions for raising money to pay such salaries and directions declaring their amount. I think, therefore, the law which increased the salary was not unconstitutional. And for these reasons I concur in the conclusion of my brother Beady, that the judgment should be affirmed.