Year: 1873

Being q Member of the Legislature No
Bar to Receiving Salary for n City
Omee-Important Decision by Judge
y. F. Daily.


Among those elected to the Assembly last win
ter was James Ryan, Deputy Clerk OF the Court OF
Special Sessions. When he came to get his salary
as such Deputy Clerk for the four months he was
dlschargng his duties as legislator at the State
capital Comptroller Green refused to- pay It, on
the ground that, as he had accepted the onice OF
legislator and received pay for such services, he
had necessarily vacated the Office OF Deputy
Clerk, and could not be paid two salaries.
Upon this Mr.. Ryan applied to Judge
Daniels, holding Supreme Court, Cham.
bers, for peremptory mandamus against
the Comptroller directing payment Of his salary
az Deputy Clerk during the four months he was in
Albany. Judge Daniels expressed the opinion that
the Comptroller was right and refused to grant the
writ asked for but granted an alternative writ,
so that the point raised might be fully argued.
The application was subsequently renewed before
Judge J. r. Daily, of the Court OF Common Pleas.
The latter Judge gave his decision In the case In
long opinion and deciding Ryan's right to be paid
his salary as Deputy Clerk


OPINION OF JUDGE DAILY.


After preliminary statement OF the facts OF the
case Judge DAILY points out two grounds OF 1ncom-
patibilty OF oflcc-frst where from the mere null
OF ONCE GOtn OffceS cannot be QlScharEeQ
by one man; and, second, where they are subordi-
nate and interfere with each other presumption
arises that the two cannot bo discharged impair
italy and honestly by one man. This last class OF
inconpatbility, he says, is the only one largely
discussed in the reported cases Judge
Daily cites at great length cases bearing on
this point, and among others cases where
the acceptance OF second office without regard to
Its weight held to vacate the first. But he also
cites cases to show that the holding of two OIL ces,
when not Incompatible, for one Of these reasons,
tuition does not forbid that the doctrine Is the
same here The cases show that the doctrine OF
incompatibillts Is fully recognized but the holding
nized lie holds that the Deputy Clerk OF Special
Sessions Is not subordinate but coordinate
officer under the statute with that OF Clerk,
the two officers being appointed by the
same power and under the same regulations,
and being simply aternates TO each other. The
Deputy Clerk has, by his appointment, six years
OF office. the Assemblyman by expectation OF law
Thus tue loo day duty does not make the ofices
absolutely Incompatible, there being an alternate
FOR the duties here. He therefore holds that Ryan


Fhrst-There need necessarily be no neglect of
duties Of the ofrce OF Deputy Clerk for the short
period that the relator might be required to be
absent in Albany, there being another officer to


Second-Thc appointment by law OF Clerk and
Deputy Clerk, two officers OF equal authority, to
perform them at the same time, evidences an in-
tent that the personal presence OF both is not at
all times necessary





local officers to hold also legislative or quasi-egs
latve Offices the duties OF which are to be per-
formed at the capital of the State. and that such
usage is to be considered as an authority is shown
by the cases rccited. In this respect he specially
cites the OF the constitutional conventions of
this STATE which, and especially in the last one,
officers held seats.


FO,Dth--That the oflces Of the relator are not
incompatible, as having any such relation TO each
other as suggests that they could not be performed
by the same person with honesty and impartiaty


In conclusion Judge Daily regrets that mis- opinion
differs from that OF some other Judges but he
must hold that the relator did not vacate his local
office by accepting that OF member OF the Legisla-
ture He therefore, directs O mandamus to issue.