12 Misc. 2d 165 | N.Y. Sup. Ct. | 1958
Petitioner, the Sheriff of Sullivan County, in a proceeding instituted pursuant to the mandamus provisions of article 78 of the Civil Practice Act seeks an order directing the respondent board of supervisors of that county
The question to be determined centers in the construction of subdivision 2 of section 652 of the County Law as presently constituted. This subdivision had its origin in the Revised Statutes of New York, part I (ch. 12, tit. 2, § 73). As pertinent here it then read: ‘ ‘ Every sheriff may appoint such and so many deputies as he may think proper ’ ’. By section 182 of chapter 686 of the Laws of 1892 it was amended as follows: “ Such sheriff may appoint such and so many deputies as he may deem proper, not exceeding one for every three thousand inhabitants of the county ”. These provisions were re-enacted in identical verbiage in the County Law of 1909. (L. 1909, ch. 16.) By article 17 of chapter .691 of Laws of 1950 a further amendment cast the pertinent part of the subdivision in its present form to read (§ 652, subd. 2): “ Within the limits of the appropriation, the sheriff may appoint as many regular deputy sheriffs as he may deem proper, but not exceeding one for every three thousand inhabitants of the county. The board of supervisors may, however, authorize the appointment of such additional regular deputy sheriffs as it may determine.”
Basically, the position of the petitioner is that the statute empowers him to appoint as many regular deputies sheriff as he may deem proper not exceeding one for every three thousand inhabitants of the county. His argument runs that its limiting words restrict only his right to appoint additional assistants whose salaries are not embraced within his original budgetary request. The respondent contends that his numerical appointive power is also restricted to the limits of its final appropriation for that purpose.
An elementary canon of construction requires that the phrase “ within the limits of the appropriation ” be read and construed with the clause “the sheriff may appoint as many regular deputy sheriffs as he may deem proper ”. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, §§ 97, 98.) The word “ appropriation ” patently relates to the budget as finally adopted by the board of supervisors (County Law, § 360) and not "to the initial estimate submitted to its budget officer by the agency
The reached conclusion renders unnecessary a determination of the cross motion.
Settle order on notice of three days.