#### THE PEOPLE OF THE STATE OF NEW YORK ex rel. CORNELIUS E. KENE *v.*FREDERIC P. OLCOTT, Comptroller of the State of New York.

*Olutp. 198 of*1876 — *wnconsUtutionality of —Power of legislature to gra/nt exto'a, compensation to clei'les*— Mileage.

So much of chapter 198 of 1876 as provides that the clerks of the committees of the senate and assembly shall he entitled to receive the *pw diem*allowance prescribed by chapter 112 of 1875, from the first day of the session to the day on which they were appointed, is unconstitutional.

So much of the said act as provides that they shall receive the same mileage as allowed to members of the legislature is constitutional and valid,

*611This is a case submitted under section 372 of tbe Code of Procedure.

The relator was appointed clerk of tbe judiciary committee of tbe senate on January 14, 1876, and continued to act as such to tbe end of that session. Tbe session began on tbe 4th January, 1876. He has been paid at tbe rate of seven dollars per day for every day be was clerk, and now claims to be entitled to pay also for tbe eleven days of tbe session before bis appointment, and also mileage under chapter 193 of 1876.

Chapter 112, Laws of 1875, is entitled “An act to amend an act prescribing tbe officers and employes that may be elected or employed by tbe senate and assembly,” etc.

Section 3 of that act contains the following :

“ § 3. Tbe following compensation shall be paid for tbe annual session of tbe legislature, commencing with tbe current session: * * * To tbe clerks of tbe committees of ways and means and judiciary, of tbe assembly, and tbe finance and judiciary of tbe senate, seven dollars per day, each; * * * and no extra allowance shall be made to tbe officers and employes above named on any pretense whatever. * * * All appointments made under this act shall be entered on tbe journal of tbe bouse wherein they are so made; such entry shall specify tbe date of tbe appointment, and tbe length of time tbe same is to be continued.”

On tbe 1st of May, 1876, and more than three months after bis appointment, chapter 193, Laws of 1876, was passed, which contained tbe following (p. 185):

“ For tbe clerks and messengers of tbe several committees of tbe senate and assembly of eighteen hundred and seventy-six, * * * to pay them their usual *%>er diem*allowance, from tbe first day of tbe session until tbe first day for which tbe comptroller has already allowed pay to them; * * * and to tbe clerks of said committees, to each of them, tbe same mileage as allowed to members of tbe legislature, tbe sum of five thousand dollars, or so much thereof as may be necessary.”

'Section 24 of article 3 of tbe Constitution is as follows :

“ Tbe legislature shall not, nor shall tbe common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor,”

*612The respondent claims that the act of 1876 was unconstitutional, in so far as it attempted to grant a *per diem,*allowance before the appointment of the relator, and also in so far as it granted mileage.

*Ra/nd, Hale <& Swa/rtz,*for the relator.

*E. W. Paige,*deputy attorney-general, for the respondent.

Learned, P. J.:

I think that the relator is entitled to his mileage; but that he is not entitled to a *per diem*allowance for the time before he was appointed. Chapter 112, Laws 1875, fixed his compensation at seven dollars per day, and forbade any extra allowance under any pretense whatever The Constitution forbids this also.

The Laws of 1876, chapter *193,*ought not, therefore, to be construed as intended to give an extra compensation beyond the *per diem*allowance allowed by chapter 112 of Laws of 1875. If the legislature could thus give an extra compensation, under the name of a *per diem*allowance for ten days prior to the time when the relator was a clerk, they might give such *per diem*allowance for ten years before his appointment. "Where one is compensated b.y the day, this compensation is measured by the number of days during which he is in the employment for which he is paid. Any thing beyond is a gratuity. Could the legislature give a public officer, for instance the governor, his salary for two years prior to the time when his office commenced ?

I think the relator should have judgment for his mileage only.

Present — Learned, P. «L, Bockes and Boardman, JJ.

Judgment ordered for the relator for mileage only.