Bright v. Supervisors of the Chenango

18 Johns. 242

• Court: New York Supreme Court
• Decided: August 15, 1820
• Status: Published

Opinion

Woodworth, J.

delivered the opinion of the Court. The plaintiff was clerk of the county of Chenango, and had purchased books for recording deeds and for the entry of common rules, and had rendered other services as clerk, for which no specific compensation is provided by law. By the statute (2 N. R. L. 137. sess. 36. ch. 49. s. 1.) the supervisors are directed “ To examine, settle, and allow all accounts chargeable against the county, and ascertain what sum ought to be raised for the payment thereof, ”

It is admitted that the plaintiff has advanced his money for the books, and performed the services, as charged; the claim for compensation, is highly equitable, and presents a strong case tor relief, in some shape, lhe question is, whether the defendants are liable, by the provisions of any existing law. The legislature have prescribed the duties of clerks, and, among other things, they are directed to procure the necessary hooks for recording deeds and mortgages, and to perform the services charged by the plaintiff; but the statute does not provide for the payment. It does not follow from the silence of the statute in this respect, that the legislature intended that the clerks should make the advances without being remunerated, particularly when it is considered that the books are not for the benefit of the officer, but the public; that the advances necessary to be made are considerable; that the tenure of office is during pleasure, and the emoluments in most cases moderate,'and in some very trifling. A construction productive of injustice must be rejected, unless rendered inadmissible by the plain language of the law; neither can this be considered a casus omissus, and, therefore, a proper subject for legislative interposition. It is, in my judgment, to be viewed in a different light. The books directed to be procured become permanent records, and are the property of the county. Although not exclusively, they are chiefly for the benefit of the county ; the clerk is bound to transmit them to his successor. The successor is not bound to pay the preceding clerk, and hence it follows,-that if no compensation is to be made, it becomes a game of chance between the different incumbents. The one who comes in after books are provided, and retires before new ones are necessary, will find it an office of profit, while the predecessor who purchased the books, and is shortly ihereaifter removed, may not have realized.sufficient to equal his actual advances. Such injustice has not received the sanction oflaw, but is guarded against by requiring the supervisors, “to allow all accounts chargeable against the county.’’ The authority is general, and was intended to embrace every case where the service rendered was specially for the benefit of the county, and for which other provision had not been made. The present case is clearly one of that description, so far as it respects the books purchased. The charge for notir fying the several judges and justices of the county, of the names of persons to whom pedlars’ licenses have been granted, is for services required by law to be performed by the clerk. The object of this notice is to insure the collection of the penalty against pedlars trading without a license; the penalty, when collected, is given, the one half to the informer, the residue to the poor of the town: thus the several towns in the county may be benefitted, and, no doubt, have been benefitted. by penalties recovered under this act. The notice given by the clerk is almost indispensable to enable thé magistrates to detect offenders; and if so, was not the service rendered for the benefit of the county ? I am of opinion that it was; and ihat it forms a just charge, which the de» fendants were bound to allow, together with interest on the moneys advanced. The rule to show cause why ^mandamus should not issue, must be made absolute.