73 Misc. 575 | N.Y. Sup. Ct. | 1911
The Legislature at its last session passed an act to amend the County Law in relation to the powers of
After the taking effect of this amendment and on July 31, 1911, at a special meeting of the board of supervisors of Rensselaer county, the following was adopted: “ Pursuant to authority conferred by chapter 359 of the Laws of 1911, be it Resolved, That the clerks, assistants and employees in all county offices in the county of Rensselaer shall hereafter be appointed by this board and by a majority vote of the members thereof.”
This is a taxpayer’s action, brought to restrain the county treasurer from paying the salaries of the persons occupying the positions of under-sheriff, cook at the jail, jailér and assistant jailer at the jail in the county of Rensselaer, all of whom are defendants in the action, and all of whom were appointed by the present sheriff of that county. When the
A temporary injunction has been granted in the action restraining the county treasurer from paying the salaries of the defendants who are the appointees of the present sheriff, and this motion is to continue that injunction during the pendency of the action.
The only question presented here for determination is as to whether the assistants and employees in the sheriff’s office can be legally appointed by the board of supervisors under the law as it now stands, or whether they should be appointed by the sheriff. They have been appointed from time immemorial by the sheriff; but the board now claims the right to make the appointments, because, in the amendment referred to, it is given power to fix u the mode of appointment ” and the board has determined, under that authority, that it would make the appointments itself. There would possibly be some foundation for this contention if
" The language in question means now, as it did before the amendment, that the boards of supervisors may prescribe or fix the mode or,manner in which those to whom the power of appointment is given by law may exercise that power and does not mean now, any more than it did. before the amendment, "that the boards of supervisors could lawfully take unto themselves the power of appointment.
It is apparent that- the Legislature did not intend by the amendment to make any change whatever with respect to the power of appointment, nor to take that power from those who had theretofore exercised it under the law ¿nd give it to the boards of supervisors.
If this construction is correct, the appointments made by the board of supervisors were without authority, of law; and
For these reasons the motion to continue the temporary injunction should be denied, with ten dollars costs, and the temporary injunction dissolved.
Motion' denied, with ten dollars costs.