People ex rel. Gass v. Lee

Gilbert, J.: That the statutes on which this case depends, viz.: Laws 1874, chapter 497; Laws 1880, chapter 77; Laws 1882, chapter 344; are “ local,” in the sense in' which that word is used in article 3 of the Constitution, has, we think, been settled by the Coui’t of Appeals, (Huber v. The People, 49 N. Y., 132; Kerrigan v. Force, 68 id., 381, and cases cited.) The appellant must also be held to be a “public officer” within the meaning of section 18 of that article. (Rowland v. The Mayor, 83 N. Y., 372, and cases cited.) Nevertheless, we are of opinion, that the mandamus was properly awarded. The intent of the legislature, in entitling the city attorney to “ demand and have a fee ” for his services in respect to sales of lands for unpaid taxes, obviously was that such fee should be exacted primarily from the taxpayer. Whether under any circumstances a liability to pay such fee might devolve upon the city of Poughkeepsie, is a question which is not now presented. It is enough to hold that it was payable in the first instance, at least, by the taxpayer. The inhibition contained in section 18 of article 3 of the Constitution, does not take away the power of the legislature to exempt taxpayers from the payment of sucli fees. Such an exemption is certainly one of the effects of the act of 1882. (Chap. 344.) To that extent that act is valid (Kerrigan v. Force, supra), whatever may be its effect upon the right of the appellant to “ demand and have ” his fee from the city. The order appealed from must therefore be affirmed, with ten dollars costs and disbursements. DykmaN, J., concurred in the result; BarNard, P. J., not acting. Order affirmed, with costs and disbursements.