114 N.E. 393 | NY | 1916
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *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,
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
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,
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 *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.,
In County of Albany v. Hooker (
In Matter of Reynolds (
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 *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 *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.
Addendum
This action was commenced December 31, 1915, before the defendant Meahl had actually entered upon the discharge of his duties as county clerk. He had been duly elected to that office at the general election in November, 1915, and had taken his official oath of office and filed his bond. The complaint alleges in substance that he publicly stated that he would, immediately upon entering upon the discharge of the duties of his office, appoint new special deputy county clerks in place of those then in office without obeying the Civil Service Law or the rules and regulations of the state civil service commission, and it further alleged that such appointments would be illegal, and that by such illegal acts the property of the taxpayers would be wrongfully diverted and wasted. The threatened acts of the defendant Meahl were immediately connected with the discharge of his *280 duties as county clerk, and so imminent that the action should be sustained as within the fair construction of the Taxpayers' Acts. The purpose of the acts is to prevent illegal action, and they assume that action will be taken before the illegal acts are consummated.
The threatened acts of the defendant Meahl were not to be performed in his capacity as a state officer. (Olmsted v.Meahl,
The order 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.