#### The People *ex rel.*Augustus Bockes, App’lt, *v.*Edward Wemple, Comptroller, etc., Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

1 Statutes—How constbued.

The well settled rule of construing statutes requires them to be read and interpreted, according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.

3. Same—Subsequent acts.

While it is true that the legislature is not vested with judicial functions which will enable it to put judicial construction upon statutes, the subsequent acts of the legislature upon the same subject sometimes afford complete demonstration of the legislative sense of its own language, and afford a safe guide for the court in expounding a statute.

35. Mandamus—To compel payment op salaby—Constbuction op statutes—Abt. 6, § 13 OP THE CONST.—Laws 1870, CHAP. 408, § 9— Laws 1872, chap. 541—Laws 1873, chap. 643—Laws 1875 chap. 373.

The relator, who for more than ten years prior to January 1,1888, served as a justice of the supreme court, having been elected in 1875, and entered upon the term of fourteen years from that time, was, by reason of his age, abridged in his term of service on January 1, 1888, by virtue of the provisions of section 13, article 6, of the state constitution, which, in substance, provides that the official terms of justices of the supreme court shall be fourteen years, but that no justice shall hold longer than and including December 31, 1887, after he shall be seventy years of age. Since January 1, 1888, the relator has been paid compensation at the rate of $6,000 per annum, as provided for by the statute (Laws 1870, chap. 408, § 9), whereas, prior thereto, he was paid at the rate of $7,210. The relator now asks for a peremptory *mandamus*to compel the payment of the additional $800 quarterly, for the quarters ending April, July and September, 1888, basing his contention on the provisions of Laws 1872, chap. 541, which provides that justices "shall receive the sum of $1,200 annually * * * in lieu of and in full of all other expenses now allowed by law,” insisting that this provision intended the $1,200 as increased pay. *Meld,*that by section 13, article 6, of the constitution, the relator is relieved and prevented from performing any of the enumerated duties, and cannot, therefore, incur any of the contemplated expenses, as these expenses are nowhere in the statute, in express terms, denominated a part of the compensation or salary for same; nor were they intended to be so by the legislature; that the relator is entitled to receive, as compensation, $6,000 per annum, from and after the date of the abridgment of his term of service, and that his application for a peremptory *mandamus*must be denied.

Appeal from an order of the Albany special term, denying an application for a peremptory writ of *mandamus.*

*Matthew Hale,*for relator; *Z. S. Weshrooh,*for def’t.

MayhÁm, J.

The relator who, for more than ten (10) years, prior to January 1, 1888, had served as justice of the supreme court in the third judicial district, having been last elected to said office at a general election in 1875, and entered upon the term of fourteen years from that date, was, by reason of his age, abridged in his term of service on the 1st day of January, 1888, under the provisions of section 13 of article 6 th of the State Constitution, which provides as *65follows: “ The official term of the said justices and judges •after the adoption of this article, shall be fourteen (14) years from and including the first day of January next after their •election.

But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy (70) years of age.”

“ The compensation of every judge of the court of appeals and of every justice of the supreme court, whose term of office shall be abridged, pursuant to this provision, and who .shall have served as such judge or justice ten (10) years or more, shall be continued during the remainder of the term for which he was elected.”

Since January 1, 1888, the relator has been paid compensation quarterly at the rate of $6,000 per annum, being $1,500 per quarter, whereas prior to that time, he has been paid at the rate of $7,200 per annum, or $1,800 per quarter.

Before commencing these proceedings, the relator duly •demanded of the defendant, as comptroller, the auditing nnd allowing to him, and a warrant for the payment to him of the additional $300 quarterly, for the quarters ending April, July and September, as to which he had been paid $1,500, instead of $1,800, as claimed by him. With this demand the comptroller refused to comply, on the ground that the relator was not lawfully entitled to receive the same.

The relator now asks for a peremptory *mandamus*to ■compel the comptroller to certify and pay such claim.

Section 14 of article 6 of the constitution provides as follows: “ The judges and justices hereinbefore mentioned, shall receive for their services a compensation established by law, which shall not be dimished during their official terms.”

Under these constitutional provisions, the legislature has, by various enactments, established by law, the rate or ■compensation which judges are entitled to receive, and it is by the interpretation of these statutes, that the right of the parties to this controversy must be determined, Section 9, ■chap. 408 of the Laws of 1870, provides that:

“The judges of the supreme court shall receive an annual compensation of $6,000 each, payable quarterly, in lieu of all other compensation, except that they shall receive in addition to such stated salary a *per diem*allowance of five dollars per day, for their reasonable expenses, when absent from their homes and engaged in holding any general or special terms, circuit court or court of oyer and terminer, or attending any convention, as hereinafter provided to revise the rules of said court.”

*66In the general appropriation bill of 1872, chap. 541, Laws-of 1872, the legislature, after making the appropriation to meet the requirments of chapter 408, Laws of 1870, for salary and expenses of judges, adds this general provision.

“The said justices of the supreme court, except in the-first judicial district, shall receive the sum of $1,200 annually, from the 1st day of January, 1872, in lieu of, and in full of all expenses, now allowed by law.”

“This subdivision shall not increase the pay of any judge except the justices of the supreme court.” In chapter 643, Laws of 1873, and also chapter 373, Laws of 1875, which are the general appropriation bills of those years, the legislature, in speaking of funds, raised for paying the judges of the court of appeals and justices of the supreme court, the language used is, “for salaries and expenses.”' In the supply bill for 1888, the provision is, “ for compensation of justices of the supreme court whose terms of office are abridged under the provisions of section 13> article 6 of the constitution, and who shall have served as such justice for ten (10) years, $12,000.”

We have above quoted all the statutes and constitutional provisions bearing upon the subject, and from them we must, by the application of the ordinary rules of construction, gather the intention of the law makers.

Much depends upon the meaning that is to be given in these various acts, to the word “compensation” for if this $1,200 per annum, which the relator had always received until the abridgement of his services, was a part of his compensation within the meaning of the word as used in the1 constitution (article 13, § 6), then it must “be continued: during the remainder of his term.”

In determining this question, the intent of the legislature in enacting the various provisions of the statute upon the subject, should first be ascertained, and effect be given to the same, in harmony with that intent, as the duty of fixing the compensation of the judges was by the constitution confided to the legislature.

The well-settled rule of construing statutes requires them to be read and interpreted according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. *Waller*v. Harris, 20 Wend., 561.

The rule of construing statutes was very fully, and, I think, correctly stated in *People*v. *Asten*(49 How. Pr., 417), which was approved and opinion adopted by the court of appeals in 62 N. Y., 623, and while the methods of construction referred to in that decision may not all be appli*67cable to the case, I think so far as applicable, they may, with propriety, be used to aid in ascertaining the legislative intent in enacting the statutes relied upon in this controversy.

The learned judge, in that case, enumerates the following maxims, which seem elementary, in the construction of statutes:

*First.*That statutes are to be interpreted according to the intent, and not necessarily, according to the letters.

*Second.*That when the words are obscure, so that the intent does not clearly appear, it may be inferred from the cause or necessity of the statute.

*Third.*That it is the duty of the courts to construe a statute so as to meet the mischief and advance the remedy.

*Fourth.*That when the provision of a statute is general, everything which is necessary to make the provision effectual is supplied by the common law.

*Fifth.*That all statutes *“inpari materia*” are to be read and construed together as if they formed parts of the same statute, and were enacted at the same time.

*Sixth.*That when the intent or the mischief intended to be remedied is "plain, but the remedy from the words used is somewhat obscure, that construction is to be given, if it be possible, which will give full effect to the intent, and not that which will render it void and inoperative.”

Within these rules of interpretation, it is proper to inquire what the intent of the legislature was in providing for a per diem allowance of $5.00 per day, as that provision is contained in section 9 of chapter 408 of Laws of 1870.

The first part of that section provides that the justices of the supreme court shall receive an annual compensation of $6,000, payable quarterly, in lieu of all other compensation.

Then in the same sentence is the following:

“Except that they shall receive, in addition to such stated salary, a per diem allowance of five dollars per day, for their reasonable expenses, when absent from home and engaged in holding any general or special term, circuit court, or court of oyer and terminer, or attending any convention, as hereinafter provided, to revise the rules of said court.”

It is contended by the learned counsel for the relator that the word “except,’’after “compensation,” in this section, is a limitation on the preceding phrase, “in lieu of all other compensation,” and that what follows the word “except” constitutes apart of the compensatiou of such justices.

It must be conceded that there is great force in this argu*68rnent, and if the interpretation was to be confined solely to-the words used without regard *to the*object of the legislation, it might be controlling. But, in determining this-question, we must, as we have seen, take into account and consider the words used in the light of the object which the legislature had in view, and the end the legislation was intended to accomplish.

By the first part of the section, they had determined to fix the compensation, which, in the same section, they call salary, as six ($6,000) thousand dollars.

They then provided a fund to meet the expenses of the judges -when from home, in the discharge of certain specified official duties, and make that depend entirely upon the contingency of. their being from home in the discharge of these duties.

It seems quite clear, therefore, that at the time of enacting chapter 408, of the Laws of 1870, the compensation or salary of the judges of the supreme court was limited to $6,000, and that the judges were entitled to receive, in addition thereto, such expenses as they might incur by reason of absence from home on especial official business, at the rate of five dollars per day. No one would contend: that-, under that act, the judges had a right to a fixed or certain compensation beyond the $6,000.

The per diem was in no sense compensation for services,, or a part of the judge’s salary. Salary is defined by Webster as “ a recompense or consideration stipulated to be paid to a person for services ” If I am right in the above conclusion, it follows that the relator would not be entitled to the amount claimed, unless the same can be paid under the provision of chapter 541 of the Laws of 1872. _ That act, after' providing the means for paying the salaries and expenses of justices of the supreme court, contains the following enactment:

“ The said justices of the supreme court, except in the-first judicial district, shall receive the sum of $1,200 annually from the 1st day of January, 1872, in lieu of and in-full of all expenses now allowed by law.

“ This subdivision shall not increase the pay of any judge except the justices of the supreme court.”

It is insisted by the relator that this provision manifestly intended this $1,200 as compensation to the judges absolutely as increased pay, and this contention is based mainly upon the language of the concluding sentence of the section, and that as the pay of any judge, except the justices-of the supreme court, is not increased by this provision, the inference is that the pay of judges, except from the prohibition, is increased, and that the word “pay,” as used in this-*69act, is synonymous with compensation, as used in the constitutional provision above quoted.

But for the preceding part of this amendment, this contention would seem sound, and the deduction made by the relator from the same would be quite controlling.

But this provision, like the other to which we have referred, must be construed as a whole, and in construing it, the court may look out of the act itself to other statutes *“inpari materia.” Turnpike Co.*v. *People,*9 Barb., 161; *United States*v. *Collier,*3 Blatch., 325.

And while it is true that the legislature is not vested with judicial functions which will enable it to put judicial construction upon statutes, the subsequent acts of the legislature upon the same subject sometimes afford complete demonstration of the legislative sense óf its own language, and afford a safe guide for the court in expounding a statute. *Alexander*v. *Mayor, etc.,*5 Cranch, 1.

“ In interpreting, judges are to explore the intention of the legislature, yet the construction put upon the statutes must be such as is warranted by or at least, not repugnant to the act. *McCluskey*v. *Cromwell,*11 N. Y., 604.

It is equally well settled that words, absolute of themselves, and language the most broad and comprehensive may be qualified and restricted by reference to other parts of the same statute in which they are used, and to the circumstances and facts existing at the- time to which they relate, or are applied.” *Smith v. The People*(47 N. Y., 337.)

In this case the court also used this language :

“In case of doubt or uncertainty, acts *in pari materia*passed before or after, and whether repealed or unrepealed, may be referred to in order to discover the intent of the legislature in the use of particular terms.”

As we have seen, the object of the provision of section 9 of chapter 408 -of the Laws of 1870, in allowing a per diera of five dollars to judges while officially engaged away from their homes, was to pay or provide for their expenses, and was in addition to their salary or compensation for services as judges. Chapter 541 of the Laws of 1872 provides a gross sum of $1,200 to be paid the judges annually in lieu of and in full for all expenses now allowed by law. In other words, in lieu of and in full for the expenses of five dollars per day while engaged in holding general term, special term, circuit, oyer and terminer, or attending conventions. By section 13 of article 6 of the constitution, the relator is relieved and prevented from performing any of the above enumerated duties, and cannot, therefore, incur any of the contemplated expenses, as these expenses are nowhere in the statute, in express terms, denominated a part of the compensation or salary for services.

I am inclined to the opinion that they were not intended by the legislature, and are not within the statute a part of *70the compensation of the judges, and do not, therefore, come within the prohibition of that constitutional provision.

This view seems to be strengthened by chapter 643, Laws of 1873, and chapter 373, Laws 1875, in both of which acts, in making appropriation for judicial expenses of the State, the legislature use the terms “salaries and expenses,” thereby seeming to keep up the distinction after the enactment of chapter 541 of Laws of 1872, and again in chapter 270 of the Laws of 1888, the legislature, appropriate a compensation of justices of the supreme court, whose terms of office are abridged under the provisions of section 13, article 6, of the constitution, who shall have served as such justices ten (10) years, $12,000.

It appearing from the affidavit of the defendant, that but two (2) such cases exist in the state, the legislature provided for them compensation at the rate of $6,000 each a year.

I am therefore of the opinion that the relator is entitled to receive of the state, as compensation, but $6,000 per year from and after the date of the abridgement of his term of service as justice of the supreme court, and that his application for a peremptory mandamus must be denied, with costs.