People ex rel. Ryan v. Green , 5 Daly 254 ( 1874 )

Robinson, J.

The relator was deputy cleric of the Court of Special Sessions of the Peace for the city and county of ¡New York in the fall of 1872, when he was elected a member of the Assembly for the year 1873, and accepted that office, and served in the same for the months of January, February, ¡March and April of that year, and without having otherwise resigned or been removed, from his office of deputy clerk by the board of police justices, by whom he was appointed, and at whose pleasure he held that office (under the provisions of chapter 373 of the Laws of 1872), claims in this proceeding, by mandamus, to compel the comptroller to pay him his salary for those four months. The return of the comptroller alleges that the duties of the office of member of the Assembly required the relator’s presence in the city of Albany, and rendered it impossible for him to perform those of the office of deputy clerk, which required his presence in the city of Hew York in order to perform the same; and that he was absent from the city of Hew York during those four months, in attendance on the Legislature, and did not perform the duties of deputy clerk during that time. The judge below, upon this return, directed a peremptory writ of mandamus to issue, requiring payment of the salary claimed for that period ; and the questions presented on this appeal are, whether the relator, by accepting the office of member of the Assembly, and attending at Albany and there performing its duties, resigned the office of deputy clerk, or whether such absence from the city of Hew York, where his duties in the latter office were to be ¡performed, disentitled him from claiming the salary attached thereto for the period of his absence at Albany, and non-performance of his official duties in Hew York.

The affirmative of both propositions is claimed, on the part of the comptroller, as well on the ground of the incompatibility of the offices, and the resignation of that of deputy clerk, by accepting that of member of Assembly, as well as of the omission to perform any of the duties appertaining to that of deputy clerk.

This office of deputy clerk was first created by chapter 282 of the Laws of 1858, in which the police justices were authorized to appoint both a clerk and deputy clerk of the Court of Special Sessions of the Peace; and by it, as well as by subsequent statutes (chap. 283 of 1870 and chap. 373 of 1872), the power of appointment was vested in other officers or board than the clerk, to whom, at common law, it would have appertained. “A deputy is he who exercises the office in another man’s right (Wood’s Ins. 203); and “where one office is incident to another, such incident office is regularly grantable by him who hath the principal office ” (Mitton's Case, 4 Co. 32); and so by statute 1 R. S. 116, § 5. The duties prescribed for such deputy clerk by the act of 1858, chap. 282, § 2, do not substantially vary from those imposed by general law upon any deputy, which are as follows: “In cases not otherwise provided for, each deputy shall possess the power and perform the duties attached by law to the office of the principal, during a vacancy and durvng the absence of his prvncvpal” (1 R. S. 117, § 7). Otherwise the deputy is but an employee, to perform clerkly duties, subject to the control of his principal, when present to exercise the duties of the office. This consideration does not, however, reduce him in the presence of his superior to the position of a mere clerk, nor divest him of his continuous character of an “ officer,” while remaining an incumbent of his position, subject to all claims upon his services, in performance of the duties of his principal, whenever the contingencies provided for by the statute shall occur. The right of an officer to his fees, emoluments or salary is such only as is prescribed by statute; and while he holds the office such right is in no way impaired by his occasional or protracted absence from his post, or neglect of his duties. Such derelictions find their corrections in the power of removal, impeachment and punishment provided by law. The compensations for official services are not fixed upon any mere principle of a “ quantum, meruit,” but upon the judgment and consideration of the Legislature as a just medium, for the services which the officer may be called upon to perform. These may in some cases be extravagant for the specific services, while in others they may furnish a remuneration that is wholly inadequate. The time and occasion may, from change of circumstances, render the service onerous and oppressive, and the Legislature may also increase the duties to any extent it chooses, yet nothing additional to the statutory reward can be claimed by the officer. He accepts the office “ for better or for worse,” and whether oppressed with constant and overburdening cares, or enabled from absence of claims upon his services to devote himself to his own pursuits, his fees, salary or statutory compensation constitutes what he can claim therefor, and is yet to be accorded, although he performs no substantial service or neglects his duties. It is different in the relation of master and servant, or employer and employee, wherein, if extra services are performed, not originally contemplated, additional compensation may be claimed, and for neglect of duty a recoupment from the wages agreed upon may be allowed. The fees or salary of office are “ qvÁcquid honora/rvumand accrue from mere possession of the office. If therefore the relator, by accepting and performing the duties of member of Assembly, in no way resigned his office of deputy clerk, his neglect of the duties which the office required did not constitute a vacation of the office, nor deprive him of the right to his accruing salary, unless there was in law such incompatibility in the two that the acceptance of the office of member of Assembly operated as a resignation of that of deputy clerk of a local court. Incompatibility of office exists as well by force of the principles of the common law as of constitutional and statutory provisions. It only arises at common law, when the one office is subordinate or subject to the supervision or control of the other, and upon the principle that one cannot both be master and servant, or principal and subordinate. It did not arise from the mere physical inability of the incumbent to he constantly present and engaged in the business of each, or to he ready to perform simultaneously all the duties they respectively required. The learned judge, whose decision is appealed from, has industriously presented an exhaustive review of such cases as have arisen at common law in England and in this country, in which such question of incompatibility of office has arisen or been adjudicated upon, and has eliminated froto them the principle above stated. Such are the cases of Verrier v. The Mayor of Sandwich (Siderfin, 353), where the offices were mayor and clerk in the same court; Rex v. Pateman (2 T. R. 777), those of alderman and town clerk, in which the aldermen were to audit the accounts of town clerk; Dyer’s Case (Dyer, 158), of justices of the Court of Common Pleas and judge of the King’s Bench, the latter being required by law to review and correct errors in -the decisions of the former; Bissell's Case (note to Rex v. Goodwin, 1 Doug. 397), of alderman and chamberlain, where also the aldermen were required to audit the accounts of chamberlain; Millward v. Thatcher (2 T. R. 82), of judge and clerk of the same court; Rex v. Patterson (4 B. & Ad. 9), of justice of the peace and county treasurer, required to render his accounts to the justices for audit; Rex v. Lizzard (9 B. & C. 421), of alderman and clerk removable by the aldermen, who also might vote upon his salary, in all which cases such incompatibility was held to exist; while, on the contrary, in Rex v. Trelawney (3 Burr. 1615) of those of capital burgess and steward, “ a higher office” in the same corporation, “by usage both having been in the same person ; ” in Rex v. Jones (1 B. & Ald. 667), of councilman and town clerk, who was to attend the meetings of the councilmen and record their proceedings, the offices were held compatible. So, also, in our State courts, in Howland v. Luce (16 I. R.), the offices of clerk and collector of the same school district; in Missouri v. Lush (48 Mo. 242), of county clerk and clerk of the Circuit Court, performance of the duties of which required attendance in different places, but each might be performed by deputy ; in Bryan v. Cattell (15 Iowa, 550), of district attorney and captain in the volunteer service of the United States, requiring absence from the county, were also held not to be incompatible. These afford a review of such as are decided on common law principles. There are others arising out of constitutional or statute provisions (2 Va. Cas. 523 ; 3 J. J. Marsh. 401; 21 Ind. 516).

The Constitution of our own State (Art. 3, § 7) prohibits any member of the Legislature recei/oing any civil appointment within this State or to the Senate of the United States, or from the Governor, Governor and Senate, or from the Legislature, during the term for which he shall have been elected. And Article 3 (§ 8) also prohibits any person, being a member of Congress, or holding any judicial or military office under the United States, from holding a seat in the Legislature; and if any person shall, after his election to the Legislature, be elected a member of Congress, or appointed to any office, civil or military, under the Government of the United States, his acceptanee thereof shall vacate his seat. There are various statutes, relating as well to members of the Legislature as to other offices, inhibiting the holding or exercising the two (1 R. S. 103 ; lb. 109, §§ 26, 27 ; lb. 111, § 30 ; lb. 112, § 48 ; lb. 116, § 2 ; L. 1853, c. 80, and others), but none otherwise affecting those under consideration.

The provisions of our Constitution and laws, above referred to, affecting the office of a member of Assembly, are to a great extent in harmony with the acts of Parliament relating to members of that body. The statute 12 Wm. Ill, c. 2, prohibited any member who had any office or place of profit under the king or pension from the crown from serving as a member of Parliament; this was repealed by 4 Anne, c. 8; but 6 Anne, c. 7, § 25, enacted that no member of Parliament should hold any office in the government and sit in the house at the same time by virtue of his former election, “ for by acceptance of an office his election is void; ” but he might be elected again on a new writ sued out, and sit in the house. By 1 Geo. I, c. 56, no person having a pension from the crown for years could be elected a member; and by 15 Geo. II, c. 22, various officers of state were rendered incapable of being members. None of the judges who were assistants to the House of Lords in the decision of questions of law were eligible, but persons holding places in other courts were (Jac. Law Dic. “ Parliament; ” Cun. Law Dic. “ Parliament; ” 1 Bl. Com. 175).

A sheriff for another shire might sit in Parliament (Jac. Law Dic. supra), as was well maintained in the case of Lord Coke, who was nominated by Charles 1 to the office of sheriff of Buckinghamshire, under the idea that he would thereby, from the incompatibility of the offices, be precluded from election to Parliament. He, however, was elected from Norfolk, and although he faithfully executed the duties as sheriff, his right to his seat in Parliament was successfully maintained (4 Ld. Camp. Lives of the Chief Justices, 332-3 ; 2 Cobb Par. Hist. 41, 44).

The common and statutory laws of Great Britain existing in 1775 were adopted in our first Constitution of 1777 (1 R. S. 32), so far as applicable to the state and condition of our country. A subsequent change was entirely within the scope of subsequent laws or constitutional provisions. Such as have been considered in no way prohibited one holding the office of deputy clerk of a local court from being also a member of the Legislature. The Constitution of 1846, in the provisions above referred to, considered the relations of a member to other offices, and while prohibiting his acceptance of other offices, it in no way provided against the holding of such a local office of which the member was previously an incumbent. Its provisions were directed against his acceptance of other offices after he became a member, and with a view to prevent the improper and corrupt influence which the hope or promise of such appointments might exert upon his conduct as a legislator, The novel condition of our own country, in its settlement and development, has occasioned the necessity for the holding of several offices by the same person, when he was deemed by the electors or appointing power capable and worthy of performing their various duties. An instance, not improbable, is stated in a recent publication as occurring in Florida, of the same person having united in himself the multifarious offices of “ senator, county commissioner, member of board of instruction, deputy marshal, deputy sheriff, county clerk, treasurer of school funds, senior councilman, and acting mayor ” (Harp. Mo. Mag. No. 257, April, 1874). The incongruity of such duties has not, however, been regarded as an incompatibility of offices, except where such incompatibility exists under some strict rule of the common law, or is created by the Constitution or laws, and necessarily arises from their construction as to the duties imposed upon the respective offices. Otherwise, whatever evils have arisen or could arise from any individual holding a multiplicity of offices have found their remedy or correction in the discretion or judgment of the electofs or appointing power. When such various honors are thrust or conferred upon the same person, and he accepts them, he takes them subject to all their duties, and becomes entitled to all the benefits legally to be derived from their possession. By the ordinary rule of construction, embodied in the maxim “ Expressio nnius est exclusio alterius,” the peculiar prohibitions of the Constitution and provisions of the Revised Statutes against a member of the Legislature accepting other specified offices should (especially where not otherwise controlled by common law) be deemed an affirma-' tion of his right to hold others not so prohibited, and to leave his enjoyment of such offices to the discretion and responsibility of the electors or appointing power, or those authorized to effect his removal, and by whose indulgence he may be permitted to retain office, without impeachment for neglect of his duties.

The power of the Legislature, of which the relator was a member, to pass laws affecting his local office did not create any incompatibility of office. All citizens, in office or otherwise, are equally subject to the action of that body ; and whatever may be the personal interest of the legislator in the subject of legislation, he is not (aside from matters of delicacy or personal honor) precluded from taking part in its deliberations or acting upon the subject. In the present case, the judge from whose decision this appeal is taken has instanced the attendance of numerous judges and officials, including the chancellor, as delegates in the conventions that framed the Constitutions of 1821 and 1846, acting and deliberating on the very existence of the offices they held, their own powers, and all other incidents of their offices, without imputation of incompatibility, and far less of any legal or moral impropriety.

Such high expositions of the practice and law upon this subject can scarcely leave a doubt that the office of the relatoras a member of the Assembly was in law compatible with that of deputy clerk; that his temporary absence from the city at Albany, during the session of the Legislature, did not in itself constitute a resignation of his local position ; that for any neglect of duty his removal could only have been effected by the action of the board of police justices, at whose will and pleasure he held the office; and that, in the absence of their action, he continued to hold his office of deputy clerk, with all its emoluments.

Upon these considerations, I am for affirmance of the order awarding a peremptory mandamus, with costs.

Daly, Ch. J., and Larremore, J., concurred.

Order affirmed.