Summary
In Huff v. Knapp (3 Sandf. 299; affd., 5 N.Y. 65) it was held that the Marine Court of the city of New York did not have the inherent power to appoint a crier at public expense because it was not strictly and broadly a court of record, but it was fairly assumed in the opinion of both courts that a court of record would have such inherent power.
Summary of this case from Moynahan v. City of New YorkOpinion
July Term, 1851
A.L. Jordan, for appellant.
Henry E. Davies, for respondent.
The complaint is against the defendant as chamberlain of the city of New York, charging neglect and refusal to pay the plaintiff for his services as crier of the marine court, according to a per diem allowance, on presenting to him a certificate of the clerk of that court, showing the plaintiff's appointment as crier, and the number of days he had attended and performed the service; and it prays judgment and execution against the defendant for the amount.
The objections taken by the demurrer are broad, yet specific enough to present the question, whether the defendant, as such officer of the corporation of the city of New York, is liable to be sued in an action at law upon such a demand? This question does not appear to have been considered in the court below, as the decision there was placed on another ground; but it is presented in the respondent's points, and has been discussed here, and we may therefore proceed to dispose of it.
The office of chamberlain, as created by royal charter ( Kent's Notes on the City Charter, 12), is identical with that of county treasurer. The article of the R.S. relating to county treasurers declares that the chamberlain shall be considered the county treasurer, and all the provisions of that article are made applicable to him, except where specific provisions inconsistent therewith are or shall be made by law. (1 R.S., 368, 370). County treasurers are not the officers to sue or be sued concerning the affairs of their respective counties. They are depositories of public moneys and disbursing agents of the county governments, acting under the orders of the board of supervisors, and in some instances of the courts of justice in relation to funds deposited with them by orders of the courts; but they have no power to adjust claims presented against their counties, nor to determine what are, or are not valid and subsisting demands, and to allow actions at law to be brought against them in the first instance for the purpose of establishing debts or demands against the counties, would soon become an intolerable grievance. Nowhere in our statutes is any authority given for a resort in that form to the county treasury. Counties may be involved in litigation; controversies may arise between one county and another, and between a county and individuals, and it may be very proper, and indeed necessary, to have them determined by the judicial tribunals of the State, and hence it is that provision is made by law for bringing suits by and against boards of supervisors, in the name of the board. Counties may sue and be sued, and the mode of proceeding is given. (1 R.S. 384). It is not all claims, however, that can be the subject of such an action. Those denominated "county charges" (1 R.S., 385) are not allowed to be sued for in that way, because another mode is pointed out for having them adjusted and paid. "Accounts for county "charges of every description shall be presented to the "board of supervisors of the county to be audited by them." (1 R.S., 386, sec. 4). This is an imperative direction. The board of supervisors act judicially in auditing and allowing such accounts. Upon being allowed, the county treasurer is to pay them. If the supervisors refuse to do their duty, or if they act improperly in such matters, the appropriate remedy is by writ of mandamus. So if the county treasurer should improperly refuse to pay upon the allowance or order of the supervisors, the like remedy may be had against him. Have the recent acts of the legislature, under which the plaintiff claims compensation as crier, prescribed any other remedy than the one just mentioned? The act of May 14, 1840, concerning costs and fees, c., has abolished criers' fees, and substituted a per diem allowance as their compensation; such allowance to the criers of the supreme court is to be paid out of the state treasury. "Criers of other courts" (these are the words) "shall receive, during their attendance upon the "court, the same compensation as constables are by law "allowed, to be audited and paid as county charges." Of course, like other county charges, to be audited and settled in the manner above mentioned. But an alteration was made in that respect by a subsequent act passed April 11, 1842, which fixes the compensation of other than the criers of the supreme court, at $1,50 per day, "to be certified by "the clerk of the court, and to be paid by the treasurer of "the county or chamberlain of the city in which such court "shall be held, on the production of the certificate of the "clerk, specifying the number of days such crier shall have "attended."
This law dispenses with the auditing of the account by the board of supervisors, since it authorizes criers to go directly to the chamberlain or county treasurer with the clerk's certificate as the evidence on which the treasurer is to pay the account; but should he not comply with the demand, is he subjected to an action at law for the payment. The statute has not said so; it has not provided that remedy. If the common law has, it should be made to appear by averment, and by proof, that the refusal was wilful, that the treasurer had funds in his hands applicable to such purpose, not otherwise appropriated. No such allegation is made in this case, and therefore there is no such right of action shown. ( Bartlett v. Crozier, 17 John R., 458.)
There can be no failure of justice for the want of a remedy in that form. The law has provided another, which is certainly more appropriate, and that is, by mandamus, the proceedings in which are regulated by statute. (2 R.S., 586.) This is just as applicable to county treasurers as to supervisors, when they refuse or neglect to perform their official duties, and it can be made more immediately coercive and effectual, than an action at law and a judgment and execution, which, after all, being against them in an official and representative capacity, might prove unavailing as a means of obtaining payment.
On the ground that an action in the present form will not lie against the city chamberlain, the judgment below should be affirmed; but as the plaintiff would thereby be turned round to the other mode of proceeding suggested, I shall proceed to examine the merits of the claim, which have been fully discussed before us.
It has been argued as if the plaintiff's right to the compensation sued for, depended on the power of the justices of the marine court to appoint a crier, and as if their authority to do so, resulted from its being a court of record, for it is not pretended that in the creation of the court, or in any subsequent statutory power conferred, there has ever been an express grant of such a power. If therefore it exists at all, it must exist by implication as a common law power incident to all courts of record. The court below appears to have held, that although the marine court possesses some of the attributes of a court of record, and is by statute treated as a court of record, yet that it is such only for the purpose of fully exercising the powers which have been expressly conferred upon it; and that it is not a court of record in the strict legal sense of the term like courts of general common law jurisdiction; and therefore it has more of the incidental powers common to courts of the latter description, and consequently can create no office, nor appoint any subordinate officer of the court, unless especially authorized by statute to do so. This appears to be a correct view of the subject, and a very proper conclusion.
In establishing the court originally and in the powers since delegated to it, the legislature have provided for all the appointments deemed necessary to its organization and the regular conduct of the business entrusted to its jurisdiction. Three justices, a clerk, and officers to serve process, are given to it. For their services compensation is made in the shape of fees payable by the suitors, of which there is a fee bill peculiar to that court. There is no compensation to be made for any service rendered there, except to the justices, the clerk and the constables and marshals, who are authorized to serve its process, and to jurors and witnesses who may be required to attend. The fee bill contains no fee for such a person as a crier of the court, or for any service performed there similar to the services performed by criers in other courts. The omission to make any such provision, while every other service therein was being provided for, goes strongly to show that such an officer as crier of that court was never contemplated. I speak now of criers as being officers of the court. They are so. Fees were heretofore given to them as such officers along with all other officers mentioned in the statutory fee bills. In the enumeration and classification of public officers as declared in our last revision of the statutes, criers of the several courts are mentioned, (1 R.S. 96), and wherever appointments are authorized to be made by the courts of this State, they are spoken of as appointments of officers of the court. (1 R.S. 109, sec. 28.)
I would not deny to the justices of any court the right to employ persons to attend and perform the services usually required of criers, but unless they are authorized to create an office and to fill it by appointment, the attendants so employed, would not be officers of the court, nor entitled to the fees or compensation provided by law for officers of that description.
The policy of the law by which the Marine Court was instituted and by which it is governed at this day, is that it should defray its own expenses out of the fees and emoluments attached to the offices created in it without charge to the public treasury. The judges therefore take to themselves the fees of their office — the clerk takes his fees — the constables and marshals theirs. To hold that an additional officer may be appointed in that court under claim of an incidental or implied power, whose services are to be a county charge, would seem to be contrary to the whole scheme of the court, and to the policy on which it is founded. Another view may be taken. Prior to 1840 the compensation to criers was always in fees, forming part of the costs and fees in each particular action or proceeding; and the courts in which such fees were allowed, are particularly mentioned. Thus in the first fee bill adopted by the legislature soon after the organization of the courts under the first constitution of 1777, the court for the correction of errors; the supreme court; circuit courts; courts of common pleas; sessions and mayor's courts; are mentioned as the courts in which criers' fees are chargeable along with the fees of the other officers of the same courts. (2 Greenleaf's Laws of N.Y. 242.) And this continued to be the case in all the subsequent fee bills in the revisions of 1801, 1813 and 1830. No fees for criers in any other courts or before any other judicial officers are given (except fees to the sergeant-at-arms of the court of chancery which are similar), although the fee bills referred to contain the fees allowed to be charged by various other courts and officers.
Thus stood the law in relation to criers and their fees when the act of May 14, 1840, was passed, which, by its 9th section, repealed all laws concerning fees for the services of criers in all courts of law, except the court for the correction of errors; and by its 10th section substituted a per diem compensation, making a distinction in regard to the amount between the crier of the supreme court and the "criers of other courts," and in the manner of payment. The same distinction is kept up in the 1st section of the amendatory Act of April 11th, 1842. Now, to whom do the words "criers of other courts" refer, and to what do they relate? They are found in these new provisions of law, which are clearly substitutional, being intended to provide a per diem compensation instead of fees, and a compensation to be paid by the State to one officer, and by the several counties to the others, instead of being paid by the suitors of the respective courts. Do they not, then, refer to such criers, and to the criers of such courts only, as are mentioned in the previous fee bills, where fees were provided for criers? I think there can be but one answer to this question, and that is, that in making the discrimination between the crier of the supreme court and "the criers of other courts," the legislature intended by the latter, such criers only as had been previously, and were then, in the receipt of fees. It appears to me that it would be a very forced construction to say that those words were intended to create the office of crier in all the other inferior courts of the State, or to put such persons as might be employed to attend any of the courts of "peculiar and special jurisdiction," mentioned in 1 R.S., 220, upon the footing of criers entitled to a daily compensation at the public expense. If, therefore, we concede to the justices of such courts the power to appoint attendants for the purpose of performing all such duties before them, it by no means follows that, under the present laws relating to the compensation of criers, the persons so appointed become entitled to the compensation of criers out of the county treasury.
We think the appellant is not a crier within the meaning of the sections referred to, of the statutes passed in 1840 and 1842; and the judgment below, for these reasons, is also correct.
This being the unanimous opinion of the court the judgment is affirmed.