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Opinion by HUNT, CH.J.

it is conceded by the Appellant here that the right to fees or compensation does not grow out of any contract between the government and the officer, but arises from the rendition of the services (id.; Dart. Col. v. Wodward, 4 Wheat. R. 627; The People v. Warner, 7 Hill, 81; S. C. 2 Denio, 272).

An office is an appointment or authority on behalf of the government to perform certain duties, usually at and for a certain compensation. Both the office itself, and the compensation, upon general principles of law, are entirely within the control of the government, to diminish, increase, or abolish. So it may at any moment be given up by the incumbent. There can be neither property nor contract in such a subject.

It is but a deputation for the benefit and advantage of the government. As the Plaintiff had no contract with the city of New York, upon the principle stated there could be no indebtedness for a breach of its terms, and the Plaintiff's action must fail. The Appellant cites several cases to show that an officer of a municipal corporation may maintain an action as on a contract against the corporation for the fees or salary attaching to his office. They are all cases, however, where the officer, being in possession, had actually performed the duties of his office, and do not involve the principles of the case before us. Thus, in Devoy v. The Mayor (39 Barb. 169), and in Canniff v. The Mayor (4 E. D. Smith, 431), there had been a change in the manner of appointing clerks in the Police Courts, the appointments having been transferred to the Board of Police. The officer discharged all the duties; the compensation was fixed by law, and it was held that a change in the manner of appointment did not affect the liability of the city to pay the salary. So in Lynch v. Mayor (25 Wend. 680), Judge Lynch had performed the duties of a Judge of the Court of Sessions, at a salary fixed by statute. The Defendants refused to pay, and upon an application for a mandamus, the Court denied it, holding that he had a perfect remedy by action. So in Baker v. City of Utica (19 N. Y. 326), the duties had all been performed, but compensation therefor

Opinion by HUNT, CH.J.

was by law to be collected by assessment, and the Court held that the action could not be sustained until the assessment was collected.

If a corporation employ or appoint an officer to perform certain duties, at a compensation agreed upon, the services being performed, the corporation is liable to an action for the compensation. The action before us goes upon the ground of a contract to give the office to the Plaintiff, or to permit him to perform its duties, and that not having given it to him, or not having allowed him to perform its duties, and receive its fees, the Defendants are liable for this breach of contract.

There is no anology or similarity in the cases.

It is suggested that an amendment of the complaint should be permitted at this time, by which the same may be converted into an action for money had and received by the Defendants to the use of Roof. I have never known the exercise of such a power by this Court, and am not aware of any authority for it. In no event could it be granted, except by a motion of which the Defendants had notice, and in which the necessary terms could be enforced. I have not discussed the rule of damages adopted by the referee, nor whether the Plaintiff is entitled to fees for services performed by Libby, nor what defence arises from the injunction, nor what remedy the Plaintiff had or might have had against the parties obtaining the

same.

The discussion of these points is unnecessary, if I am corcorect in the position that the Plaintiff has no right of recovery in this action.

All concur.
Judgment affirmed.

JOEL TIFFANY,
State Reporter.

Statement of the Case.

THE PEOPLE OF THE STATE, &c., v. JAMES M. RAYMOND.

Quo Warranto-Constitution-City of New York-Tax Commissioners.

This was an action in the nature of a quo warranto, to determine the validity of the law relating to the appointment of Tax Commissioners within and for the city and county of New York.

The Court held that the office of Commissioner of Taxes, in and for the city and county of New York is a city or county office, and that the functions of such office existed, and were substantially exercised by ward assessors at the time of the adoption of the constitution of 1846, and therefore that the act of the Legislature, creating the Board of Tax Commissioners, and vesting their appointment in the Governor, with the advice of the Senate, is, to that extent, unconstitutional.

THIS is an action in the nature of a quo warranto, brought against James M. Raymond, a Commissioner of Taxes and Assessments in the city of New York, an office to which he was appointed by the Governor of the State of New York, by and with the advice and consent of the Senate, under and in pursuance of the provision of an act of the Legislature of the State of New York, passed April 17, 1867 (ch. 410, Laws of

Constitutional law-Statute-Severance. 150 N. Y. 521. Home rule-Power of legislature. 170 N. Y. 190; D. 172 N. Y. 435; 174 N. Y. 435, 446; 29 Hun, 180; 42 How. Pr. 424; 51 How. Pr. 159, 169; 64 How. Pr. 484; 67 App. Div. 383 (73 N. Y. Supp. 694); 67 App. Div. 379 (73 N. Y. Supp. 691); 79 App. Div. 204 (80 N. Y. Supp. 100) 79 App. Div. 211 (80 N. Y. Supp. 105).

Constitutional law-Office-Nature. 58 N. Y. 529; 108 N. Y. 10 (12 St. Rep. 773; 28 Week. Dig. 121); 35 App. Div. 304 (55 N. Y. Supp. 12); 35 App. Div. 305 (55 N. Y. Supp. 13).

Legislative power-Public officers. 37 N. Y. 666; 53 N. Y. 649; 31 Misc. 163 (64 N. Y. Supp. 535; 35 Misc. 211 (71 N. Y. Supp. 815; 32 Civ. Proc. 144); 35 Misc. 312, 313 (71 N. Y. Supp. 48, 49; 32 Civ. Proc. 143).

Opinion by HUNT, CH.J.

1867). The only question presented for the consideration of the Court is the constitutionality of the act referred to.

The Judge at Special Term, in New York, decided that the act referred to was valid, and affirmed the right of Defendant to the office.

This judgment was reversed at General Term, and a new trial ordered, and from this order the present appeal is taken. M. B. Champlin, Attorney-General, and Henry H. Anderson, for the Respondents.

William F. Allen, Waldo Hutchings, and John H. Reynolds, for the Appellant.

HUNT, CH.J.—I am for affirmance. The law of 1867 simply changes the mode of appointment of "Commissioners of Taxes and Assessments of the city and county of New York," authorizing the Governor and Senate to make the appointment. The act of 1859 (p. 678) authorizes the Comptroller of the city of New York to make the appointment of these Commissioners. By the act of 1857 (p. 497, vol. 2) the Supervisors of the county of New York were directed to elect these Commissioners by ballot. Their general and important duty, under each act, was to regulate the assessable property, as is done by assessors in the country. There is a difference in the detail of the duties, but their general character is the same under each act. In 1850 (p. 188) it was enacted that there should be elected, by the electors of the ward, two assessors for each ward, and the Supervisors were directed to appoint three Tax Commissioners, whose duties were prescribed in §§ 15 to 22, being generally to revise, review, and correct the assessment rolls, and deliver the same to the Supervisors. Previously to this time the duties of the assessors were substantially as prescribed in the Revised Statutes, the act of 1830 providing for a metting of all the ward assessors, for the purpose of equalizing the taxes. In effect, the Legislature have divided the duties of assessors as they existed in 1846, and have given an important part of them to Commissioners of

Opinion by GROVER, J.

Taxes and Assessments. The assessors are elected by the city and county authorities, or divisions of them, and under art. 10, §2, these Commissioners must be elected in the same manner (People v. Draper, 15 N. Y. 552; Pinckney, 32 N. Y. 381; Warner, 2 Denio, 272). The present law is in violation of this principle.

GROVER, J.-This is an action in the nature of a quo warranto, brought by the Attorney-General, to determine the title of the Appellant to the office of Commissioner of Taxes and Assessments in the city and county of New York. The Appellant was duly appointed to such office by the Governor, with the consent of the Senate, pursuant to section 1, chap. 410, Laws of 1867 (p. 981), and has duly qualified according to the requirements of said act. His right to the office, therefore, depends upon the constitutionality of said act. It is claimed by the counsel of the Respondent that the act in question is in conflict with section two, article ten, of the constitution, and, therefore, void. That section provides that all county officers whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties, or appointed by the Board of Supervisors, or other county authorities, as the Legislature shall direct. All city, town, and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns, or villages, or of some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed as the Legislature may direct. There is no question but that the office in question is exclusively a city office. To determine whether the act in question is constitutional, so far as the power of appointment is thereby vested in the Governor, with the consent of the Senate, it is necessary to determine whether the office in substance existed at the time of the adoption of the

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