CASES ARGUED AND DETERMINED IN THE COURT FOR THE CORRECTION OF ERRORS OF THE STATE OF NEW-YORK, IN DECEMBER, 1846. MORRIS VS. THE PEOPLE. An act of the legislature cannot be set aside as unconstitutional, unless its incompatibility with the constitution is manifest and unequivocal. Per LOTT, Senator. An act providing for the appointment of additional judges for the courts of justice in the city of New-York is not necessarily an alteration of the charter of the city. Semble. Per LOTT, Senator. But if the provision in the act of May 14, 1840, which directed the appointment of associate judges of the court of general sessions of the city and county of NewYork, was void for not having been passed by a constitutional vote, still the individuals appointed pursuant to the act, who entered upon their duties, were judges de facto-whose authority could not be questioned collaterally. Per LOTT, Senator. And the officers whose agency was by law required in providing for the payment of their salaries could not inquire into the legality of their appointment. Per LOTT, Senator. Where the legislature, after the persons so appointed judges had served in their offices one year, passed an act, by a majority vote, declaring the arrears of their salaries a county charge, and directing the board of supervisors to audit and allow their accounts therefor, held a constitutional enactment and binding on the board of supervisors. Such a statute is not, even admitting the act for the appointment of the judges not to have been constitutionally passed, "a bill appropriating the public moneys or Morris v. The People. property for local or private purposes," and did not therefore require the assent or two-thirds of the members elected. Where the board of supervisors of a county are required by law to "audit and allow" the accounts of a class of public officers for their salaries, they have no discretion to exercise, but must allow the salary as fixed by law. And where the account of such an officer was presented to the board, and was not audited—the resolution for its allowance being lost-held that a member voting against it was liable to the penalty of $250, prescribed by 1 R. S. 368, § 16. In an action for the penalty in such a case, the facts being undisputed, the liability of the defendant is a conclusion of law; and the judge need not submit the question to the jury. Held also, that the motive of the defendant is not material, and that he is liable, although he acted mistakenly and not corruptly. In declaring against a supervisor for the penalty imposed by the revised statutes for refusing or neglecting to perform a duty required of him by law, it is not necessary to refer to the statute prescribing the duty, but only to that which inflicts the penalty. ON error from the supreme court. The district attorney of the city and county of New-York brought an action of debt in the court below, in the name of the people, against Robert H. Morris, the plaintiff in error, for a penalty of $250, imposed by the statute, (1 R. S. 368, § 16,) for refusing to perform his duty as a member of the board of supervisors of the city of New-York, "in this to wit: in refusing to audit and allow the account of James Lynch, one of the associate judges of the court of general sessions of the city and county of New-York, for arrears of salary then and there due by law to the said James Lynch, as such associate judge; whereby an action hath accrued to the said plaintiff to have and demand of the said defendant the said sum above demanded according to the provisions of the statute entitled 'of the powers, duties and privileges of counties and of certain county officers,' part first, chapter twelve, title second, article first, section sixteenth of the revised statutes." The suit was commenced on the 8th day of September, 1841, at the instance of Judge Lynch. The defendant pleaded not guilty, and the issue was tried before Kent, late C. Judge, at the New-York circuit in February, 1842. The commission of James Lynch as one of the associate justices of the court of general sessions of the peace in and for the city and county of New-York was pro Morris v. The People. duced, and it was shewn that he took the oath of office on the 20th day of May, 1840. It was then proved on the part of the plaintiff that at a meeting of the board of supervisors of the city and county of New-York, held on the 17th day of June, 1841, the account of Judge Lynch for his salary for one year, to May 20th, 1841, was presented, and a resolution was offered that it be audited with interest, which was lost, the defendant, who as the mayor of the city was a member of the board, voting in the negative. Another meeting of the board was held on the 21st day of June, 1841, at which the defendant offered a preamble to the effect that the act establishing the offices of associate judges of the general sessions was passed without the application of the city authorities, and was against the wishes of the inhabitants, but that inasmuch as the supreme court had held the law obligatory, it was the duty of the board to obey it; and also two resolutions, the first declaring that the board did not approve of or sanction the law and hoped for its repeal, and the other directing the comptroller of the city to pay the salaries of the associate judges. The question was taken, separately, upon the preamble and upon each of the resolutions, and they were lost, the vote upon each being affirmative seven, negative seven; the defendant voting in favor of the preamble and of the first resolution, and against the second resolution. A resolution to audit the salary Judge Lynch was also lost, as was likewise a resolution declaring that the board would not direct the comptroller to pay the salary, the defendant in each instance voting in the negative. Another meeting was held on the 9th day of July, 1841, when proceedings of the same general character not resulting in any action in favor of the payment of the account were had, the defendant proposing a preamble and resolutions similar to those above mentioned, but voting against the auditing of the account after the preamble was lost, and at the same time voting against a declaration that the salary should not be paid. No further proceedings of the board touching the account seem to have been had prior to the commencement of the suit. The defendant then proved that neither the act "for the better organization of the criminal courts of the city of New-York," Morris v. The People. passed May 14th, 1840, (Stat. p. 257,) or the act "to enable the supervisors of the city and county of New-York to raise money by tax," passed May 26th, 1841, (Stat. p. 265,) received the assent of two-thirds of all the members elected to each branch of the legislature; and he offered to show that the question of the liability of the city for these salaries was pending before the courts in various forms when he was called upon to vote; but the testimony was excluded upon the plaintiff's objection, and the defendant excepted. The defendant insisted that neither of these acts were constitutionally passed; but if they were, that it was a question for the jury whether the defendant had acted corruptly, and he requested the judge to charge the jury that the defendant was not liable unless his intention was corrupt. The judge however charged the jury, that these acts were legally passed and were obligatory, and that the defendant had incurred the penalty mentioned in the statute. The defendant's counsel excepted and the jury found a verdict for the plaintiff. The defendant moved the supreme court in arrest of judgment, and also for a new trial on a bill of exceptions. Both motions were denied, and judgment was given against the defendant. The reasons of that court were given as follows, by COWEN, J. The declaration is good within the 2 R. S. 482 § 10, unless it be defective in omitting a reference to the statute of 1841, ch. 276, p. 267, § 4, specially directing the supervisors of the city and county of New-York to audit and allow the account of Judge Lynch and his associates. The section cited from 2 R. S. substitutes a very general form of declaring on penal statutes for the special matter required to be set forth in the common law declaration. It declares that it shall be suffi cient in a declaration on any penal statute, to allege, as is done here, that the defendant is indebted in the prescribed penalty; "whereby an action accrued according to the provisions" of the statute, &c. The penal statute referred to in this instance gives the penalty of $250 against each supervisor who shall refuse or neglect to perform any of the duties which are or shall be required of him by law as a member of his board. (1 R. S. 368, Morris v. The People. 16.) The statute of 1841 imposed the duty of auditing the account mentioned in the declaration. The general reference alone is, I think, sufficient. Though the act of 1841 was passed years after the statute which gave the penalty, yet the refusal to audit, &c. was properly treated by the declaration as in effect a violation of the latter. This has, by its prospective words, effectually incorporated with itself the act of 1841, and both must be read as one statute. On this construction, any refusal to do the duty of a supervisor while acting as a member of the board, whether imposed by a statute passed before or after, rendered the defendant liable in the words of the statute, according to the provisions of the statute, entitled &c. But the pleader has not contented himself with the general reference. He has mentioned the particular violation of duty which, on comparing the specification with the act of 1841, we see is within its terms. That removes all doubts, if there be any, on the general form. The motion in arrest must be denied. The salary of Judge Lynch had been fixed by statute, and made payable out of the treasury of the city of New-York. It had not been paid May 26th, 1841; and an act was then passed making it a county charge, adding " And the mayor, recorder, and aldermen of the city of New-York, as the supervisors of the said city and county of New-York, of whom the mayor or recorder shall be one, shall audit and allow the account for such arrears on or before the tenth day of July next." Judge Lynch's account was duly presented, and the defendant, who was mayor, voted against its audit. The provision of the revised statutes is, that "if any supervisor shall refuse or neglect to perform any of the duties which are or shall be required of him by law, as a member of the board of supervisors, he shall for every such offence forfeit the sum of $250." Under the proof the defendant was prima facie liable. We have held that the law constituting the court of general sessions for the city was valid, as being passed by a constitutonal majority that a two-third vote was not necessary. That the question was pending when the vote of the defendant was VOL. III.* 49 |