People ex rel. Kene v. Olcott

18 N.Y. Sup. Ct. 610

• Court: New York Supreme Court
• Decided: September 15, 1877
• Status: Published

Opinion

Learned, P. J.:

I think that the relator is entitled to his mileage; but that he is not entitled to a per diem allowance for the time before he was appointed. Chapter 112, Laws 1875, fixed his compensation at seven dollars per day, and forbade any extra allowance under any pretense whatever The Constitution forbids this also.

The Laws of 1876, chapter 193, ought not, therefore, to be construed as intended to give an extra compensation beyond the per diem allowance allowed by chapter 112 of Laws of 1875. If the legislature could thus give an extra compensation, under the name of a per diem allowance for ten days prior to the time when the relator was a clerk, they might give such per diem allowance for ten years before his appointment. "Where one is compensated b.y the day, this compensation is measured by the number of days during which he is in the employment for which he is paid. Any thing beyond is a gratuity. Could the legislature give a public officer, for instance the governor, his salary for two years prior to the time when his office commenced ?

I think the relator should have judgment for his mileage only.

Present — Learned, P. «L, Bockes and Boardman, JJ.

Judgment ordered for the relator for mileage only.