sheriff is in legal effect personal to the sheriff and is not an official undertaking.

Reilly et al. v. Dodge et al, 38 St. Rep. 352.

Mott v. Robins, 1 Hill 21.

Previous to the enactment of chapter 481 of the Laws of 1912, the municipalities were not liable for the premiums paid by its officials upon their qualifications for their respective offices. (Matter of Kenmore, 59 Misc. 388, Opinion of Attorney-General [1911], 412.) It is very clear that the Legislature intended to limit the liability of the State or municipality to the expense incurred by those officials that are required to give a bond to the State, political subdivision or municipality for the faithfu! performance of their official duties. In other words, it only applies to such officers as are required by some statute to give to a State, political subdivision or municipality a bond as a part of their official qualification for their positions. As herein before stated, there is no statute requiring a deputy sheriff to give a bond to the county or the people. The sheriff fixes the amount of the bond which he requires his deputies to give, or he may waive the execution of a bond. It runs to the sheriff personally, and if there is default or misconduct on the part of the deputy, the sheriff becomes liable therefor, and he and his sureties are liable to all third parties for the default, etc., of his deputies. If the sheriff is compelled to pay damages or costs on account of the acts of his deputies, he has recourse then against the deputy who committed the default and such deputy's sureties.

The deputies are appointed by the sheriff. The approval of the board of supervisors as to his appointments is not required and the undertakings given by such deputies are not official undertakings within the meaning of section 11 of the Public Officers Law. The same rule will apply to other subordinate appointees of the county officials or where no official undertaking is required by statute to be given as a part of the qualifications of such appointees to enable them to hold their positions.

I do therefore advise you that a county is not liable for the expense incurred by a deputy sheriff for procuring a surety com

pany to stand as a bondsman upon his undertaking given to the sheriff upon his appointment as a deputy sheriff.

Dated February 3, 1919.

CHARLES D. NEWTON,

Attorney-General.

To HARRY C. BENNETT, County Treasurer of Yates County, Penn Yan, N. Y.

EXEMPTION OF PARSONAGES

SECTION 4, SUBDIVISION 9 OF THE TAX LAW.

Church property used exclusively by the clergyman as a dwelling house or parsonage does not become taxable on account of being vacant a short time during the change of pastorate.

INQUIRY

Where a parsonage is found by the Trustees of a village to be temporarily vacant owing to the resignation of the last pastor and the failure of the congregation to select another, which parsonage has always been used exclusively by the officiating clergyman, when one was actually employed by the Church, does the property lose its exemption because it was not actually occupied by an officiating clergyman at the time the trustees were assessing the village property or making up their tax warrant?

OPINION

It appears that the First Presbyterian Church of Wilson owns a dwelling house which has been continuously used and occupied for some years by the officiating clergyman whenever one has been employed; that in the month of May last, the pastor resigned and from that time down to the time the school tax warrant was made up, the parsonage was unoccupied awaiting the installation of a new pastor; that the parsonage has never been rented or used for any other purpose than for a residence and home for the officiating clergyman; that there is no intention on the part of the church to use it for any other purpose; that in making up the last school tax warrant the trustees placed such property upon the tax roll at a valuation of $1,800 as vacant property, and a tax was laid thereon in the mount of $10. The question now arises whether such property lost its exemption on account of its being vacant during a change of pastorates.

It is provided by section 4 of the Tax Law:

*

"The following property shall be exempt from taxation

* "

"9. All dwelling-houses and lots of religious corporations while actually used by the officiating clergyman thereof, but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by subdivision seven of this section. * *

In construing the above subsection it is necessary to take into consideration the intent and purposes of the Legislature in making the exemption. I find no case where the specific question involved in this inquiry has been passed upon by the courts, but it is well settled that exemptions are not favored and are to be strictly construed. An exemption from taxation "must be expressed in clear and unambiguous terms and appear to be indisputably within the intention of the Legislature."

People v. Cameron, 140 A. D. 76; affd 200 N. Y. 585, and other cases cited.

While recognizing this well established rule, I desire to refer to another rule which is equally well settled, and that is, that in the construction of statutes the intent of the Legislature is to be ascertained if possible, and effect given to the purposes of the lawmakers, even if such purposes are outside of the letter of the law.

"A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within. the letter; and a thing which is within the letter, is not within the statute, unless it be within the intention of the makers." Gay v. Seibold, 97 N. Y. 477; Holmes v. Carley, 31 N. Y. 477.

"It is the spirit and purpose of a statute which have to be regarded in its interpretation; and if these find fair expression in the statute it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some provisions of the

statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law-makers.

Weiler v. Newbach, 47 Hun 166.

"A reasonable construction though contrary to the literal meaning of some of the provisions, should be adopted where there is doubt in regard to the intention of the Legislature."

Central Trust Co. v. N. Y. Equipment Co., 74 Hun

405.

"The lawmakers cannot always forsee all the possible applications of the general language they use; and it frequently becomes the duty of the Courts in construing statutes to limit their operation so that they shall not produce absurd, unjust or inconvenient results not contemplated or intended.”

L. S. & M. S. Ry. Co. v. Roach, 80 N. Y. 344.

The foregoing citations are fair indications of the general trend of the courts to give effect to the real purposes and intention of the Legislature rather than to the literal meaning of the words used. Following the rule laid down by the courts it becomes the duty of the Attorney-General to construe and interpret statutes so as to carry out the real purposes thereof rather than to adopt a construction that would lead to absurd, unjust and unreasonable results. To hold that the words "while actually used by the officiating clergyman" were intended to render the premises taxable if they were vacant for a day or a month or six months, during the interim that will generally occur in a change of pastors, would lead to just such an absurd, unjust and unreasonable result. It is exceedingly doubtful whether the legislators ever considered the condition of the premises while temporarily vacant during a change of pastorates. It seems to have been the intention to exempt property which was generally used for the home of the clergyman from taxation to the amount of $2,000, the intention. being to allow such exemption only while it was devoted exclusively to that purpose.

The property in question has not been rented to any outside parties and there is no intention of either renting, abandoning or using it for any other purpose than for a parsonage. If it is either made a source of income for the corporation or is abandoned as a parsonage, it would then lose its exemption, but neither of such conditions has arisen and I think the assessors erred in failing to continue the exemption.

The exemption provided for under subsection 9 is in line with several other provisions of section 4 of the Tax Law and should be strictly pursued unless a strict construction would defeat the very purposes of the Legislature in granting it. The language used in the statute is plain and unambiguous and the intention of the Legislature is equally so,- That is, that church property used generally and exclusively for the home of the pastor shall remain exempt so long as it is entirely devoted to that purpose. By applying the rule of construction hereinbefore referred to, it follows that the literal meaning must give way to the evident intent and purposes of the law-makers in framing the legislation. It may appear to be incongruous to adopt a liberal construction of a statute which is conceded to be entitled to a strict construction, but I cannot disregard the rule that it is the spirit and intent of the Legislature which must guide and control even in matters of exemption, rather than the strict letter of the law.

I do therefore advise you that the parsonage hereinbefore referred to should have been exempted to the amount of $2,000 and, as its valuation was fixed at $1,800, it should have been wholly exempted and should remain exempt so long as it is used or kept solely for occupancy by the officiating clergyman of the church.

Dated, February 5, 1919.

CHARLES D. NEWTON,

Attorney-General.

TO BOARD OF EDUCATION, Wilson High School.