Art. III, § 28

Compensation of Public Officers

Amendments of 1874, Art. III, § 24; continued without change in Const. 1894, Art. III, § 28.

"The evil sought to be remedied by this constitutional provision seems to be an increase of compensation for services theretofore rendered, which would be in the nature of a gratuity." Per Smith, P. J., in Porter v. Fletcher, (1912) 153 App. Div. 470, 138 N. Y. S. 557; Young v. Rochester, (1902) 73 App. Div. 81, 76 N. Y. S. 224. See also Mahon v. Board of Education, (1902) 171 N. Y. 263, 63 N. E. 1107, 89 A. S. R. 810, affirming 68 App. Div. 154, 74 N. Y. S. 172; Truesdale v. Rochester, (1884) 33 Hun 574. Thus, the allowance to a county road superintendent of an automobile to be used by him in overseeing the work under his supervision is not void under this section. Though that allowance reduces the expenses of the superintendent and hence is, in a sense, a species of compensation, it clearly does not relate to past services and hence does not come within the purview of these provisions. Porter v. Fletcher, (1912) 153 App. Div. 470, 138 N. Y. S. 557. Allowance to officer of compensation for period anterior to his appointment. - Chapter 193, Laws of 1876, in so far as it attempts to grant clerks of the committee of the senate and assembly the per diem allowance prescribed by chapter 112 of the Laws of 1875, from the first day of the session several days prior to their appointment, is unconstitutional. People v. Olcott, (1877) 11 Hun 610.

Allowance of or increase in salary of office during term of incumbent.— An increase in the regular compensation of an office, or an allowance of compensation where none was previously allowed, is not unconstitutional hereunder, even though effective during the term of an incumbent of the office, provided that such increase or allowance relates to future and not to past services of the officer. Young v. Rochester, (1902) 73 App. Div. 81, 76 N. Y. S. 224; Truesdale v. Rochester, (1884) 33 Hun 574. Thus, chapter 534 of the Laws of 1901, which amended section 13 of the charter of cities of the second class (Laws of 1898, ch. 182) by attaching a salary to the office of alderman, and which took effect immediately, is not void as to an incumbent of that office elected at a time when no salary attached thereto. Young v. Rochester, supra. Similarly, an increase by the common council of the city of Rochester in the salary of a police justice is not violative of this section, though such increase takes place during the term for which the justice was elected. Truesdale v. Rochester, supra.

Compensation for distinct public service. An officer serving in two distinct official capacities is entitled to legal compensation for the services rendered by him in each capacity and is not debarred from receiving the statutory allowance for duties performed under one office by reason of the circumstance that adequate remuneration is attached to the other office. People v. Archer, (1910) 142 App. Div. 71, 126 N. Y. S. 750; Merzbach v. New York, (1900) 163 N. Y. 16, 57 N. E. 96, reversing 19 App. Div. 186, 45 N. Y. S. 1018. Thus, a person holding the office of notary public and of messenger or librarian to the district attorney of the city and county of New York may recover fees for services rendered as notary at the request of the district attorney in connection with the criminal business of the county. Merzbach v. New York, (1900) 163 N. Y. 16, 57 N. E. 96, reversing 19 App. Div. 186, 45 N. Y. S. 1018. Similarly, although a statute authorizing a town to issue bonds and devote the proceeds to the acquisition of lands for a public park, made the town supervisor one of the park commissioners and provided that the commissioners shall receive no compensation for their services, the supervisor, being made by the statute the custodian of the funds and required to disburse them, is entitled to commissions on moneys not paid as provided in subdivision 3 of section 85 of the Town Law, inasmuch as his function as supervisor in paying out the money is separate and distinct from his function as a park commissioner. People v. Archer, supra.

Art. III, § 28

Compensation of Public Officers

Compensation for extra official act.— Payment in addition to the regular salary or compensation of an officer may be made him for services which lie outside the range of his official duties and which are performed by him, not by virtue of his office, but under a special contract. Thus, since a county clerk is not required to make new indexes of county records in the discharge of the duties of his office, such clerk may properly be allowed compensation in addition to his regular fees where he has, under an agreement with county supervisors, reindexed those records. Wadsworth v. Livingston County, (1910) 139 App. Div. 832, 124 N. Y. S. 334.

Payment of salary to both de jure and de facto officers.- A municipality which has paid a de facto officer who has performed the functions of an office the salary attached thereto is not liable legally to pay it again to one subsequently adjudged to be the lawful incumbent of the office, but who has rendered no service therein; the remedy of the latter is an action for damages against the usurper. Consequently, a statute directing the municipality to pay to a de jure officer the salary of the office for the term served by the de facto officer is unconstitutional within this section where the city has already paid to the latter the salary for that term. Stemmler v. New York, (1904) 179 N. Y. 473, 72 N. E. 581, affirming 87 App. Div. 631, 84 N. Y. S. 1147. See also Grant v. New York, (1906) 111 App. Div. 160, 97 N. Y. S. 685. Award of contract for construction of public work to other than lowest bidder. The action of the aqueduct commissioners (ch. 490, Laws of 1883) in awarding a contract to build a reservoir and dam at Cross River to a firm that submitted a bid in excess of the lowest bid made, is not to the extent of that excess a grant of extra compensation, other considerations than the bare amount of the bids entering into and materially affecting such award. Walter v. McClellan, (1906) 113 App. Div. 295, 99 N. Y. S. 78, affirmed, (1907) 190 N. Y. 505, 83 N. E. 1133.

66

Increase in functions of official as justification of extra compensation.The plea that the duties of an official have been enlarged far beyond those imposed at the time his service commenced, is not potent to justify an addition to the fixed pay of that official. One who accepts public office with a salary attached must perform for the fixed recompense the duties within the radius of his service, even though largely augmented. If his duties diminish he is entitled to the pay prescribed. If they are increased he must perform them for the salary, even though inadequately paid." Per Spring, J., in People v. Neff, (1907) 121 App. Div. 44, 105 N. Y. S. 559, affirmed, 191 N. Y. 286, 84 N. E. 63; Merzbach v. New York, (1900) 163 N. Y. 16, 57 N. E. 96, reversing 19 App. Div. 186, 45 N. Y. S. 1018; Marshall v. Hayward, (1902) 74 App. Div. 27, 77 N. Y. S. 57. Thus, where the trial of an indictment is changed to another county and the district attorney of that county is employed by the district attorney of the county from which the cause was removed to assist at the trial, he is not entitled to additional compensation, inasmuch as the prosecution of all crimes and offenses cognizable in the county wherein he serves lies within the scope of his duties. People v. Neff, supra. Similarly, neither the corporation counsel of the city of Mount Vernon, nor the members of the common council of that city, nor the highway commissioner of the town of Pelham are entitled to any extra compensation for services rendered by them in the construction pursuant to chapter 269, Laws of 1897, and chapter 568, Laws of 1896, of a bridge across the Hutchinson river, which forms the boundary between the town of Pelham and the city of Mount Vernon. Marshall v. Hayward, supra.

Allowance of equitable claim as extra compensation.— This section does not inhibit the legislature from allowing reasonable compensation for services rendered in a case where the compensation attempted to be provided by law failed by reason of the invalidity of the law making the provision. Wherefore, the Act of 1885 (ch. 238, Laws of 1885), providing for the hearing and determination before the board of claims of the claims of certain persons

while acting as captain and harbor-masters of the port of New York, is constitutional and valid. Cole v. State, (1886) 102 N. Y. 48, 6 N. E. 277. In like manner the payment by the state of a contractor's claim which, though technically invalid, is yet morally binding, is not unconstitutional hereunder. Swift v. State, (1882) 26 Hun 508, reversed on other grounds, 89 N. Y. 52. As to the validation of a moral claim, see further, Art. 8, §§ 9, 10; Art. 3, §§ 19, 20.

Gratitude or charity as justification of extra compensation.— Considerations of gratitude or charity do not warrant the grant of additional compensation to a public officer. Stemmler v. New York, (1904) 179 N. Y. 473, 72 N. E. 581, affirming 87 App. Div. 631, 84 N. Y. S. 1147; Mahon v. Board of Education, (1902) 171 N. Y. 263, 63 N. E. 1107, 89 A. S. R. 810, affirming 68 App. Div. 154, 74 N. Y. S. 172; People v. Partridge, (1902) 172 N. Y. 305, 65 N. E. 164, reversing 74 App. Div. 620, 77 N. Y. S. 1137. Thus, chapter 725 of the Laws of 1900, directing the board of education of the city of New York to place certain persons, who had been retired as teachers before the establishment of the pension system by chapter 296 of the Laws of 1894, on the list of retired teachers entitled to receive as annuities one-half the salaries paid to them while in service, and to pay to them such annuities from the time of their respective retirements, not earlier than the enactment of the statute of 1894, is unconstitutional so far as it relates to teachers who retired before the enactment of that statute, it being an appropriation of city moneys to persons who had been employees at a time when no pension system was provided by law. It must be regarded as making a gratuity or extra compensation to a public servant and is, therefore, within the prohibition of this section. Matter of Mahon v. Board of Education, supra. Answering a contention made in that case that "the act of 1900 is as though the State said to worn out and decrepit school teachers, 'You have not been paid enough for your services, and we will now pay you what you deserve,' court said: "It is exactly such action on the part of the legislature that the constitutional amendment was intended to prevent. Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered. No one would assert that as between private indi viduals there arises any equitable or moral obligation to pay for services more than the stipulated compensation, where no services have been rendered additional to those contemplated by the contract. There was no moral obligation on the city of New York to establish a pension system in favor of teachers. Most of the servants of the state and most of the teachers in public schools enjoy no right to be pensioned for services. The question of establishing a system of pensions is one of policy, not of obligation. The legislature might well think that in a large city where teaching is adopted as a calling to be pursued for years, and often for life, it would be wise to provide a system of pensions as an inducement both to service at low wages and also to good conduct in service. But these considerations have no application to the case of officers or employees who are not in service at the time the pension system is established or in force. As to such persons the grant of a pension is a mere gratuity."

$29. Prison labor.

Contract system abolished.

Work for state or political subdivisions excepted.

"the

The Legislature shall, by law, provide for the occupation and employment of prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories in the State; and on and

after the first day of January, in the year one thousand eight hundred and ninety-seven, no person in any such prison, penitentiary, jail or reformatory, shall be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation. This section shall not be construed to prevent the Legislature from providing that convicts may work for, and that the products of their labor may be disposed of to, the State or any political division thereof, or for or to any public institution owned or managed and controlled by the State, or any political division thereof.

Const. 1894, Art. III, § 29.

Effect of section on pre-existing contract for prison labor.-This section is not retrospective. Thus, it does not invalidate a contract made prior to its adoption by the managing authorities of the Albany penitentiary with a private contractor to furnish him a certain number of convicts for a period of three years. Bronk v. Barckley, (1897) 13 App. Div. 72, 43 N. Y. S. 400. Restriction of sale of prison-made goods.-The question as to whether this section expresses an intention to inhibit the sale of prison-made goods to the general public and thereby to suppress the competition of prison with free labor, has been raised but not decided. It was considered in People v. Hawkins, (1898) 157 N. Y. 1, 51 N. E. 257, 68 A. S. R. 736, 42 L. R. A. 490, 20 App. Div. 494, 47.N. Y. S. 56, wherein was involved the constitutionality of an act (ch. 931, Laws of 1898) requiring all goods made by convict labor in any penal institution to be labeled "convict made " before being sold or exposed to sale. Judge O'Brien delivered the prevailing opinion of the court, and having found the act otherwise violative of article 1, section 6, concluded that it could not be sustained as sanctioned by this section. This section, the learned judge remarked, "does not forbid the sale of any article of property. It deals only with modes of employing convicts and with practices that had formerly existed, under which the labor of convicts had become a subject of bargain and sale. It simply abolished what was known as the contract system of labor in prisons, whereby the profits of the labor of convicts were secured by contractors or private parties. This is apparent from the language of the section which begins by providing for the employment of convicts. It then forbids the employment of the inmates of penal institutions at any trade or industry whereby his work or the product and profits of his work shall be farmed out, contracted, given or sold to any person.' What is it that this language forbids? Not dealing in tangible things or articles of property wherever made but the farming out, contracting, giving away or selling of convict labor. The words 'product and profit of his work' do not refer to articles of property, but to the net value of labor. If the framers of the constitution intended to prohibit dealing in any article of merchandise, surely they would not have described the article by such vague terms as the products of work. A manufactured article is not known in common parlance, in law or political economy as the 'product of labor.' Of course, labor enters into its production, but in many cases it is an insignificant element. The article is the product of raw material and labor combined, or, as it is commonly expressed, labor and capital. The prohibition against dealing in any article of property cannot be found in this section without giving to the words a strained and unnatural meaning. If any of

Art. IV, § 1

Governor and Lieutenant-Governor

the penal institutions of the state happen to have a farm attached to it, worked by the convicts, as some of them probably have, it would be a very narrow construction of this section to hold that the products or profits of the farm, whether consisting of cattle or other farm produce, could not be sold to the general public because it would be the products and profits of prison labor." That point was not essential to the disposition of the case, however, and the majority of the courts concurred with Judge O'Brien on other grounds stated by him. Judge Bartlett, with whom concurred Chief Judge Parker and Judge Haight, filed a dissenting opinion presenting views on this matter that differed diametrically from those submitted by Judge O'Brien. In the course of his opinion he said: "As I read this provision, it not only prohibits the work of prisoners from being farmed out or contracted to others, but it also prohibits the products from being given or sold to any person, firm, association or corporation. If the products of the work of prisoners cannot be given away or sold, then it, of necessity, follows that the product of prison labor in this state cannot be dealt in by the inhabitants thereof. I do not see how there can be any question with reference to the meaning of the words used; but, should there be, it would seem as if all doubt must, of necessity, vanish upon reading the concluding sentence of this section: 'This section shall not be construed to prevent the legislature from providing that convicts may work for, and that the products of their labor may be disposed of to, the state, or any political division thereof, or for or to any public institution owned or managed and controlled by the state, or any political division thereof.' If the product of prison labor was intended to be sold and thus enter the general commerce and traffic of the state, what is the purpose of this clause? The mind can suggest none. The provision would be meaningless under such a construction. But when it is read in connection with the former provision quoted, and in view of my understanding of the meaning of that provision, it has a well-defined purpose. Under the former provision, as we have seen, the products of prison labor cannot be sold to individuals, etc. This would leave the prisons with the power to manufacture, but not to dispose of their product. The latter provision relieves this situation. While the goods cannot be sold to any person, firm, association or corporation, they may be disposed of to the state or any political division thereof, or to any public institution owned or managed and controlled by the state or any political division thereof. In other words, the state may supply its own wants from its own prison labor, but the product of such labor shall not be given or sold so as to enter the general traffic in manufactured goods."

ARTICLE IV.

§ 1. Governor and lieutenant-governor; term of office.

The executive power shall be vested in a Governor, who shall hold his office for two years; a Lieutenant-Governor shall be chosen at the same time, and for the same term. The Governor and Lieutenant-Governor elected next preceding the time when this section shall take effect, shall hold office until and including the thirty-first day of December, one thousand eight hundred and ninety-six, and their successors shall be chosen at the general election in that year.

Const. 1777, Arts. XVII and XX; amended, Const. 1821, Art. III, § 1; amended, Const. 1846, Art. IV, § 1; amended in 1874, Art. IV, § 1; amended, Const. 1894, Art. IV, § 1.