was, by an instrument in writing, designated, retained and employed by the district attorney of New York county to assist in the trial of Samuel J. Kennedy upon an indictment for murder in the first degree. The employment was approved by a justice of the supreme court, and the designation, with the approval thereof, were filed in the office of the clerk of that court. After the trial a statement of relator's claim for such services and for his disbursements was presented to Mr. Justice Fursman, who presided at the trial of the cause, and was certified by him as correct, and the compensation of relator was fixed at the sum of $2,539, “pursuant to chapter 733 of the Laws of 1872." This certificate was filed by the relator with the comptroller of the city of New York, and, said comptroller having refused to pay the relator the amount so certified, he procured an order to show cause why an alternative writ of mandamus should not issue directing the comptroller to pay said claim. Upon the return of such order a peremptory writ was issued directing the comptroller to pay to the relator the amount of his said claim, and from the order so made this appeal is taken.

The appellant contends that the provisions of the act of 1872 never applied to the county of New York, and, in any event, it was not complied with; that the act of 1872 was repealed by chapter 323 of the Laws of 1874, which last-mentioned act did not apply to the county of New York, and was not complied with; that both the act of 1872 and the act of 1874 were expressly repealed by Laws 1892, c. 686; that the justice before whom the indictment was tried had no power under either of the repealed laws to fix the amount of the compensation of the relator; and that there was an express contract between the relator and the district attorney fixing his compensation, which should have controlled the action of the court in determining the same. The certificate given by the learned judge who presided at the trial shows upon its face to have been given pursuant to the authority contained in chapter 733 of the Laws of 1872. This was an act making appropriations for the expenses of the government, and for supplying deficiencies in former appropriations, as expressed in the statute. In the body of section 2 is found the provision relied upon, and it provides that after the passage of the act the district attorney of any county in which an important criminal case is to be tried, with the approval of the county judge of the county, such approval to be filed in the county clerk's office, may employ counsel to assist him in such trial, and the cost and expense thereof to be certified by the judge presiding on such trial, and the same shall become a county charge upon the county in which the indictment is found, and shall be assessed, levied, and collected by the board of supervisors at the next annual assessment for the levy and collection of county taxes after the service shall have been performed, and be thereafter paid over to the party entitled to the same. In 1874 the legislature passed another act, being chapter 323 of the Laws of that year, entitled "An act making appropriations for certain expenses of government, and supplying deficiencies in former appro

and 106 New York State Reporter

priations." In the body of section 2 of this act is found a provision relating to, and in all respects covering, the same subject as was provided in the act of 1872. The language is in all respects similar, and in substance is the same, as in the first enactment, so far as it conferred authority upon the district attorney to employ counsel with the approval of the county judge of the county. The provision for certification and the method of collection and payment over to the party entitled thereto are in all respects the same as in the first act. The later act further makes provision for the appointment and payment of counsel assigned and designated by the governor or attorney general at the request of the district attorney. The section also contains a limitation upon the governor or attorney general to designate or appoint such counsel, and the state is exempted from liability for payment for such service. It is clearly evident, therefore, that the later enactment covers the whole subject-matter of the first enactment, and was plainly intended to furnish the only law upon the subject. The later act, it is true, contains no repealing clause, nor does it purport to amend the former statute, but it does, in terms, cover the whole subjectmatter of the prior enactment upon this subject. It is true that the repeal of a statute by implication is not favored in law, but where, as here, the subject-matter of a former enactment is entirely covered and embraced in the subsequent statute, the former statute will be held to be repealed by necessary implication. It is too plain for argument that the latter statute, in the present case, repealed the former enactment by implication. In re New York Institution for Instruction of Deaf and Dumb, 121 N. Y. 234, 24 N. E. 378; Heckmann v. Pinkney, 81 N. Y. 211. This provision of the act of 1874 continued to be in force until the passage of chapter 686 of the Laws of 1892 known as the "County Law." In the schedule of repealed laws attached to that enactment the clause of section 1 of the act of 1874 was, in terms, repealed. Specific attention being called to the subject-matter upon which the repeal operated, and by section 204 of this act the provision of the Laws of 1874 was re-enacted so far as it authorized the district attorney to employ counsel by and with the approval of the county judge. By virtue of section I of the act of 1892, however, the county of New York is excepted from the operation of the provisions of the act. It is clear, therefore, that at the time when the learned judge made the certificate, which has been made the basis for the authority conferred by the act under which it was assumed to be given, because the same was repealed, there was no other provision of law which authorized the judge to make such certificate in the county of New York. The certificate, therefore, imposed no liability upon the city or county of New York to pay the sum certified, nor does the service which has been rendered impose any liability upon the city or county, payment of which may be enforced by mandamus.

This conclusion' renders it unnecessary to discuss whether or not the acts of 1872 and 1874 had application to the city of New York, or whether the judge presiding at the trial, if they did so

apply, had authority to "fix" the compensation, as well as to certify its amount.

The conclusion reached in this case is not to be construed as depriving the district attorney of the right to employ and have the assistance of counsel in a proper case.

The order appealed from should therefore be reversed, with costs, and the motion denied, with costs. All concur.

(65 App. Div. 157.)

PEOPLE ex rel. MACK v. BURT et al., Civil Service Com'rs.

(Supreme Court, Appellate Division, First Department. November 8, 1901.) CIVIL SERVICE COMMISSION CLASSIFICATION OF

MUNICIPAL CORPORATIONS

OFFICES-CERTIORARI.

Laws 1899, c. 370, § 10, requiring the mayor of each city in the state to appoint and employ suitable persons to prescribe and enforce rules for the classification of the offices and employments in the classified service of such city, confers only administrative power, and not judicial; and certiorari will not lie to review the action of the city or state civil service commission in making a classification thereunder.

Certiorari by the people, on the relation of Jacob W. Mack, to review the action of Silas W. Burt and others, civil service commissioners of the city of New York, and the state civil service commission, in classifying in the health department a new position, under the title of "Anti-Toxin Accountant." Writ dismissed.

Argued before VAN BRUNT, P. J., and PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Charles C. Burlingham, for relator.
William B. Crowell, for respondents.

INGRAHAM, J. This proceeding was instituted by a taxpayer to review the action of the municipal civil service commissioners in including in Schedule B of the classification of positions in the department of health a position of anti-toxin accountant, which act of the municipal civil service commissioners was subsequently approved by the state civil service commissioners. The municipal civil service commissioners acted under section 10 of chapter 370 of the Laws of 1899, which provides that:

"The mayor of each city in this state shall appoint and employ suitable persons to prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of such city, and for appointments and promotions therein and examinations therefor."

The power conferred by this section is clearly one which imposes. upon the commissioners duties in their nature administrative, rather than judicial. It is one step in the proceeding for the appointment of officers and employés of the municipal corporation. The statute under which the respondents acted is entitled "An act in relation to the civil service of the state of New York and the cities and civil divisions thereof." Its intent is to provide for the proper and orderly appointment of officers and employés of the state and the municipal corporations therein. A classification of the officers is

and 106 New York State Reporter

necessary to determine the method of appointment, and such a classification is no more a judicial determination than is the designation of the officer by the appointing power under the provisions of the statute. At common law or under the Code of Civil Procedure a writ of certiorari is only allowed where the object sought is to review a judgment or a judicial determination of an inferior tribunal, or of an officer acting under statutory authority exercising judicial power. "The writ lies only to inferior courts and officers exercising judicial powers, affecting the property or rights of the citizen." People v. Walter, 68 N. Y. 403; People v. Board of Com'rs of Public Parks, 97 N. Y. 37; People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 37 Am. St. Rep. 522; People v. Board of Sup'rs of Queens County, 131 N. Y. 468, 30 N. E. 488. In the latter case the court say:

"The writ of certiorari is appropriate only to review the judicial action of inferior courts or of public officers or bodies exercising under the laws judicial functions, and there is no authority to be found in the Reports of this state sanctioning its use for any other purpose. When the action of a public officer or of a public body is merely legislative, executive, or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari."

The civil service act (section 27) authorizes a taxpayer to bring an action to restrain the payment of compensation to any person appointed to or holding any office, place, or appointment in violation of the provisions of the act; and, in case of the appointment of any officer in violation thereof, that would seem to be the proper remedy.

It follows that the action of neither the municipal nor the state board of civil service commissioners can be reviewed in this proceeding, and that the writ should be dismissed, with costs.

concur.

All

PEOPLE ex rel. SMART v. BOARD OF SUP'RS OF WASHINGTON COUNTY.

(Supreme Court, Appellate Division, Third Department. November 13, 1901.) 1. OFFICERS-COUNTIES-COUNTY CHARGES-CHARGES AGAINST OFficer.

Laws 1892, c. 686, § 230, subd. 16, specifies as county charges the reasonable costs and expenses in proceedings before the governor for the removal of any county officer on charges preferred against him. Held, that where, on mandamus to compel a county board of supervisors to audit relator's claim for expenses incurred in preferring charges before the governor against the sheriff for malfeasance in office, the alternative writ was dismissed at the opening of the trial, it would be presumed on appeal that respondents had failed to properly audit the claim, as charged in the writ, so as to sustain mandamus to compel an audit, rather than certiorari to review an erroneous audit as the proper remedy. 2. MANDAMUS-AUDIT.

Laws 1892, c. 686, § 230, subd. 16, specifies as county charges the reasonable costs and expenses in proceedings before the governor for the removal of any county officer on charges preferred against him. Held, where one who had preferred charges against the sheriff of a county before the governor on the ground of the sheriff's malfeasance in office presented a claim for his expenses to the board of supervisors, who re

jected the same on the ground that the county was not liable for such expenses, that mandamus would lie to compel the audit.

8. PARTIES-TAXPAYERS' LEAGUE.

Laws 1892, c. 686, § 230, subd. 16, specifies as county charges the reasonable costs and expenses in proceedings before the governor for the removal of any county officer on charges preferred against him. Held that, where an association known as a "taxpayers' league" preferred charges against a sheriff before the governor for malfeasance in office, it was proper that the claim for the expenses should be made by the league, instead of by its president individually, or by the attorney employed, notwithstanding the fact that the president appeared as an individual complainant before the governor.

4. SAME-UNINCORPORATED ASSOCIATION.

The fact that the association was not incorporated was no objection to its claim.

5. STATUTES-CHARGES AGAINST OFFICER-PRESENTATION BY INDIVIDUAL. The statute does not mean that the right to reimbursement by the county is limited to counsel employed by the governor or employed by the attorney general, and hence the expenses of a taxpayers' association in preferring charges against the sheriff before the governor were county charges.

6. PROBABLE CAUSE-EVIDENCE-SUFFICIENCY.

Where charges are preferred before the governor against a sheriff for malfeasance in office, and subsequently he resigns, and is thereafter convicted on the same charges which were preferred, such facts indicate prima facie a probable cause for the preferring of the charges.

Appeal from special term, Washington county.

Mandamus by the people, on the relation of John G. Smart, as president of the Taxpayers' League of Washington County, against the board of supervisors of Washington county, to compel them to audit the claim of the league for charges and expenses incurred in proceedings before the governor for the removal of the sheriff of Washington county on charges preferred. From a judgment dismissing the alternative writ, relator appeals. Reversed.

The relief sought by the relator was a writ of mandamus to compel the board of supervisors to audit the claim of the relator for expenses claimed to have been incurred in a proceeding before the governor for the removal of the sheriff of Washington county upon charges preferred. The claim is made under section 230, subd. 16, c. 686, of the Laws of 1892, which specifies as county charges "the reasonable costs and expenses in proceedings before the governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein."

The relator, John G. Smart, claims to be the president of the Taxpayers' League of the County of Washington, an unincorporated association consisting of more than seven members. Among the objects of this association was the examination of bills of county officials of the county of Washington, and, if such bills were found to be fraudulent, then to cause proper legal action to be taken for the removal of such officials from office. In 1898 and 1899 two bills were presented by John M. Hulett, the sheriff of Washington county, the first for over $8,000, and the second for over $10,000, both of which bills were audited by the board of supervisors of said county at the full amount claimed. These bills were claimed to be fraudulent, and in March, 1900, the relator preferred written charges against said Hulett, as said sheriff, before the governor, accusing the said Hulett of malfeasance, misfeasance, and nonfeasance in the discharge of the duties of the office of sheriff, and for violation of the laws of the state relating to public officers and public offices, and with the violation of his duty as prescribed by chapter 117 of the Laws of 1897, in that he had knowingly and corruptly presented false and fraudulent accounts to the board of supervisors in 1898 and