New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-07-11
THE DECISION.

THE DECISION.
The relator in this case moves for an order
awarding writ OF mandamus directing the Controller
OF the City NewYork TO pay the REALTORS salary
deputy clerk the Court OF Special Sessions OF the City
and County OF New-York The relator appointed
to the office about the lst day OF May 1870 and the
claim made for payment of his salary relates TO that
portion OF period Of intervening between the last ~
January and the 1 OF june 1879 amounting 20 the sum
OF 500 &c. II admitted In the argument OF theino-
ton that the relat0r member Of the last Legisa
ture and attended to the discharge Of his official duties
capacity during of the period already men
toned. This admission OF necessity includes the con
cession that the reatcr may legally be elected
member OF the Legislature at the Fall election OF 1917,
and that he accepted the Office by assuming the dis
charge OF his duties For that reason the Controller
has declined 10 pay portion of the salary 10 him which
the law and resolution Of the Board of Supervisors have
provided should be paid 10 the Deputy Clerk OF the Court
of Special Sessions. The objection urged In support ~
the position taken by the Controller is that the amended
Charter which, upon this subject took effect as law
upOn,April 80 1879 provided that persons holding Office
under OF the city should yacate such ONCE
by accepting in the Legislature. This objection
the Charter did not 20 into effect until April ~,
1873, can, under its provisions, extend no further
that part OF the claim made which includes the
amount the salary due for the month OF May 1919
demand having been made for payment beyond the eN-
piratiOn OF that month The act under which the oec'
ton that extent taken enacted for the gov
eminent OF the City Of aud from It's nature IN
that respect could duly and properly include the cases
of officers of the city. They would fall within the APP
propriate province OF such act under the cOnstu
tonal provision limiting local acts to one subject and
that have been the theory OF the act for upon
this particular subject it simply provides that the officer
accepting seat in the Legislature shall be held 70 have
vacated every office held by him under the city govern
fent. CHAP. 1885, lLl In order TO bring the relaor
q alAu
that his office OF Deputy Clerk of the Court Of Special
Sessions was an Office held by him under the city
ernment II that not Its character then the pro
vision OF the Amended Charter very obviously has moth
ing whatever to do with his application The statutes
enacted various times concerning the Court Of which
the relator has been the Deputy Clerk have not expc
lily defined its technical character but they have de-
scrioed it as the Court Special Sessions the Guy
of New York" and the Special Sessions Ia said Guy
and County" I'D II. s., Ed, 1909, ~ As, %, Chap
2S Laws Of 1883; Laws OF 1870, vol ], page sl7 ~;
Laws Of 1877, vol. l. 91s, 5 ~ Tie management ahd
usual designation is that Of SPECIAL Sessions Of tue
City and County OF New-York," aud that description OF
1t is sufficient render Court of the County well
as OF the City Of NewYOrk aud as such, when
it was provided for by the Revised Laws it was gwen
Jurisdiction misdemeanors committed m the city
and county, q Revised Statues 5O 49, and the same
Jurisdiction preserved aud connuedby the Lave ~
1883 @ s. 5th Ed 3l IS, Section of chap 272 o: The
and deputy clerk OF the court should De fixed by tho
Board OF supervisors and paid out OF the treasury ~
the city and county tends to support the same c0ncu
sion The REALTORS officer OF deputy clerk. therefore
was not an office held under the government OF the city,
and for that not vacated under the provision
ferred 10 contained the Amended Charter; but A. bs
office OF Member Of the Legislature which while
eontinued required his personal presence and attention
at Albany when the session which he was elected vas
held does not follow, because the is included
in the Amended Charter that the Controller tins city
was wrong in declining 10 pay him the salary provided
for the deputy clerk OF the Court Special Sessions
The duties Of that officer well those the Office OF
Member OF the Legislature, were personal IN their
ture and from the large amount Of business constantly
coming before the Court OF Special Sessions It's
widely extended jurisdiction, the duties OF the deputy
clerk OF the court must have been Of constantly
recurring character. They necessarily required hi.
continued and daily presence at the court
for the purpose Of having them eliectnaly
and properly performed. And as he himself
was simply deputy, these duties could NJ, be per
formed by any substitute selected aud assigned him FOR
the purpose for by the common law deputy was dis
abed from appointing another person to perform tho
dutjes required Of him IN his capacity OF deputy.
Upon this subject the rule is stated TO be that minis,
teria office may be exercised by a deputy though .
deputy cannot make deputy, according the maxim,
deiegaa poteses non potest. deleggi Kent 10 3D. 90.
and that Is plainly the theory of the creating tho
office; for it requires the clerk OF the court bis
deputy TO enter all proceedings OF the said court tho
sentences and convictions had therein, full in book
OF minutes to be kept by him fS that purpose 70 ad
minister the oath affirmation required by law, and To
issue all subpenas the part the people and FUR
nlsh blanks for RI" witnesses re0aired bv fbs deisA