159 N.Y.S. 246 | N.Y. App. Div. | 1916
Charges were filed with the Governor of this State against the relator, alleging official misconduct on his part as district attorney of Eockland county. A commissioner was appointed by the Governor to hear the testimony. The relator appeared by counsel before the commissioner, and, as a result of the hearing of the testimony in prosecution and defense, the charges were dismissed. The purpose of the charges was to procure the removal of the relator from office as district attorney.' The relator presented to the board of supervisors of Eockland county for audit and allowance a claim for his expenses for counsel fee and various disbursements incurred by him in his defense. That claim was rejected by the board of supervisors by a resolution thereof which recited that the claim was rejected, not upon the merits, but upon the ground that it did not constitute a county charge. Subdivision 16 of section 340 of the County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16) designates as “county charges:” “The reasonable costs and expenses in proceedings before the Governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein.” This provision of the County Law is a substantial re-enactment of a provision of the “ supply bill ” of 1874 (Laws of 1874, chap. 333, p. 388). In that statute the Legislature
In People ex rel. Benedict v. Supervisors (24 Hun, 413) a claim had been presented to the board of supervisors of Oneida county, by the sheriff of said county, for his expenses in defending himself in certain proceedings taken before the Governor to procure the relator’s removal from office as sheriff. The board of supervisors made a partial audit of the claim. The sheriff obtained a writ of mandamus requiring a complete audit. The proceeding was had under the provisions of the act of 1814, and, while there is no discussion in the opinion of the court whether the act of 1814 did apply to the expenses of a county officer in defending himself against charges made to the Governor to procure his removal from office, it appears to have been assumed by all the parties to the controversy that the act did apply, and the decision of the court proceeded accordingly.
Later, in People ex rel. Benner v. Supervisors of Queens County (39 Hun, 442), the question arose as to whether the statute aforesaid authorized compensation, as a county charge, of an individual who had charge of the prosecution of certain charges before the Governor for the removal from office of the
In People ex rel. Nash v. Board of Supervisors (164 App.. Div. 89) it was held that the reasonable expenses of certain residents of Onondaga county in prosecuting certain charges before the Governor for the removal from office of the sheriff of said county were proper county charges. There the proceeding was based upon the provision of the present County Law, which, as before stated, is but. a re-enactment of the specific provision of the statute of 1874. In the case last cited the Appellate Division (Fourth Department) affirmed upon the opinion of former Judge Vann, who sat as referee in the proceeding. In his opinion the referee said, passim,: “ It is to be observed that the statute does not authorize payment of the reasonable expenses of defending, but only of prosecuting a public officer.” This question, however, was not before the court for decision in that case. The observation was purely obiter. In view of the great distinction of the referee the observation is entitled to careful consideration, particularly so as it relates to the turning point of decision in the case at bar. As the present statutory provision is but a re-enactment of the provision in the statute of 1874, it is not to be considered as if it were an entirely new statute, but as a continuance of the former one. The same interpretation is to be given to it as it was judicially construed or interpreted as it stood originally, unless there be apparent good reason to the contrary. We see no good reason why the statement of Barnard, P. J., in People ex rel. Benner v. Supervisors of Queens County (supra) should not be adopted as sound with regard to the original statute. It seems to us that there is nothing in the language of the statute as it now stands that requires any different interpretation as to the legislative intent. The precise question now before us was considered in Gavin v. Board of Supervisors (93 Mise. Bep.
The writ of certiorari should be sustained and the determination of the board of supervisors of Rockland county should be
Jenks, P. J., Thomas, Mills and Rich, JJ., concurred.
Writ sustained, determination annulled, with fifty dollars costs and disbursements, and claim of relator remitted to the board of supervisors to be audited on the merits.