The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-11


paramount law" know Of no instance in which
official association, possible interest in some
question involved in the controversy, has prevented
judicial action. If there had been any-iudeed, il
there had been q positive statutory pr0hibitiOn-a
Judge of this court, upon whom general and unre-
sricted jurisdiction in law and equity has been con-
ferred by the constitution would nevertheless have
been bound to hear and decide a cause. whom the
only elections to his acting would il they could pre-
vail, efiectually bar the door OF Justice, which
should be open to all against enc OF the parties Tho
reator the 9th Of May last presented to the Board
Of Supervisors of the county OF New York an account
for that part Of the additional annual compensation
to him justice Of the Supreme Court, resident in
the First district allowed by an act OF the Legis
nture passed on the sixteenth day OF April 1857 and
the subsequent action OF the supervisors under that
law, accruing between the first of January and the
first of April, 1853 The Board of Supervisors there
upon adopted resolution in the following words =
Resolved, that the preceding account (which was
bstantally have stated it" OF Robert IL. N Dr.
ris be- and the same is hereby audited and allowed,
and that the Chamberlain Of the city of New York,
rs county treasurer OF the city and county OF New
York. do accordingly pay to the said Robert
Fl. Morris the amount thereof-that is to say
the sum of three hundred and seventy.ive dollars;
ard o copy Of this resolution shall be his sufficient
warrant for such payment" copy Of this resolu-
ton was presented to the defendant, and the money
demanded; but he refused to pay it, on the ground
that he was not authorized to make any payment out
Of the city treasury except on a warrant drawn by
the Comptroller and countersigned by the Mayor aud
eleventh section Of the act to amend the charter Of
the city OF New York, passed on the second April
ls49, (Kents City Charter and notes. p. 1867 which
had been pro cured in this instance The relator
has applied for mandamus, requiring the defend
ant as the county treasurer to pay the money; am
bound to award the desired process II 1 am satisfied
that the claim Is valid, that it has been made with
the requisite formalty. and that the reator has no
other clear and adequate remedy. 1T has been
supposed that the act of the Legislature, under and
pursuant TO which the allowance in question was
made by the supervisors, was invalid; because, hrst
it prohibited by the constitution, and, secondly,
it purported to sanction the imposition Of local tax
for what should be State expenditure. The consti-
tuition OF this State provides (atice 6, u that the
judges of the Court Of Appeals and justices OF the
Supreme Court shall severally receive at stated times,
for their services compensation to be established by
law which shall not be increased or diminished during
their continuance in Office. BY an act passed short
~ after the adoption Of the constitution, the Justices
Of the Supreme Court were allowed an annual salary
of twenty-five hundred dollars each. The act OF the
sixteenth Of April, 1852, to which have before
alluded provides that shall be lawful for the Board
OF Supervisors Of the county Of New York to raise
by tax upon said county and pay to the justices OF
the Supreme Court resident in the first district such
additional annual compensation as they may deem
proper. claws OF 1852 p. 592, 8. ~ The Board OF
Supervisors OF that county, on the 9th OF Decem-
be 1852 resolved that In pursuance OF the authority
vested in them there should be allowed to each Of
the justices Of the Supreme Court in the first judi
cal district compensation for their services Of
thousand and five hundred dollars year, which
should be paid to them quarterly out Of the county
tice Of this court last November, and his term Of
office commenced on the first day of January, 1853.
The resolution Of the Board of Supervisors had been
passed previously to his accession to Office, and his
compensation was not thereby increased during his
official term. In this respect his case differs from any
which be presented by either OF his brethren, all
Of whom were elected before the year 1852. The
only question under the constitutional provision,
foro yopta n rpIa il VIII
tional compensation has been established by law.
A general law can be enacted only by the State Lee
gisature local law however may be passed by the
Beard of Supervisors OF county, where the requisite
power has been conferred upon it by the sovereign
legislative autborty-(State Constitution, Art. g. s.
17) In the case under consideration, the power
was expressly conferred. Ii the resolution OF the
Board OF Supervisors has not all the attributes OF
loo al law it may yet be valid exercise Of the
power conferred by the Legislature. The consttu.
ton does not require that the amount of compensa
ton shall be specified in any general statute ltcslls
for legislative action. That is the required bass but
the superstructure may be fashioned pursuant tn such
provisions may be established by the Legislature
An act is as essentially accomplished by law when
performed pursuant to statute, as II contaminated
BY the statute itself. The power Of determining
whether an expenditure shall be met by gene
raj or local taxation, is vested solely in
the State Legislature. 1t may not be without
some restrictions, / am unwilling to admit that
there is any despotic power in any Of our political in
stitutions It's conceive, beyond the power OF the
Legislature to tax one man. or the inhabitants OF one
locality exclusively for the benefit of another but
where an advantage is shared, more or less by all 1t
is within the province Of the Legislature to determine
whether the requisite expense shall be borne by the
State at large or only by portion Of it which may
be peculiarly benefited. Thus, the expenses Of lay
country or in our cities, although the improvement
il to extent beneficial to all are assessed upon
small districts, because the greater benefits are to
those residing in the immediate vicinity. Our court
70 oil ttran fa onAr thnua
constructed by the county In all such cases the
ton of the Legislature is valid unless the reason
which it is founded is clearly illusory In the case OF
The People against the Mayor &C., OF Brooklyn re-
Gently decided by our Court OF Appeals, Judge Rug
giles in his elaborate and very able opinion, re-
marked, that lit must be conceded that the power
OF taxation. and of apportioning taxation, or OF
assigning to each individual his share OF the bur
then is vested exclusively in the Legislature unless
this power is limited restrained by some constitu-
tional provision" Where discretionary power is
vested in the Legislature it cannot be limited by the
action Of our courts 1t is competent for them to
pass upon the existence of the power, but not upoa
the propriety expediency OF its exercise. In the
present instance, the Legislature has declared that
the increased compensation to the Justices Of the
First district may be paid by the county OF New
York The reason undoubtedly is, that their neces-
sary expenses exceed those OF their brethren in other
parts OF the State. There is, too greater quantity
litigation in this court in the county of Mes York
than in any other district. But the labor cannot be
very different the requisite attention to the duties
OF any one of them, be his residence in city
country requires all his business time, and often
more TO the entire neglect Of his private affairs The
attendant upon residence IN the city,
is, Of orse from local causes and must necessarily
be incurred by all who constantly perform Judicial la
Dor there. That calls for additional remuneration, and
is sufficient to egalize local charge. similar
sheraton doubt induced the Legislature of 1918
to pass act giving to any Justice of the Supreme
Court who might reside in the city of New York. in
addition to his salary fees for chamber business and
for other services tout of cour appertaning 10 his
Office. Claws OF that year, PIP. ia, g. have said
that the of Judge Morris differs in an important
particular FROM any which might be presented by
either Of his associates do not, however wish 10
be under TODD intimating an opinion that the ad
dtioBal allowance to my other brethren in this dis
trict, proposed by the resolution OF the Board Of
Supervisors, is unconstitutional. There has not,
far know, been any decision that public officers
whose compensation for their services, established
by law cannot be altered are 80 FAR restricted to that
that they cannot receive any addition aalowance for
their expenses or any extraordinary service, when
sanctioned by the Legislature. The practice under