Chapman v. City of New York

• Decision Date: 01 October 1901
• Citation: 61 N.E. 108,168 N.Y. 80
• Parties: CHAPMAN v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 80

61 N.E. 108

CHAPMAN

v.CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 1, 1901.

Appeal from supreme court, appellate division, First department.

In the matter of the application of George S. Chapman for the payment of a claim against the city of New York. From a judgment of the appellate division (68 N. Y. Supp. 1135) affirming an order of the special term denying a motion for the appointment of a referee to hear and examine into the claim, the claimant appeals. Affirmed.

On the 18th of December, 1899, the appellant presented his petition to the supreme court at a special term thereof, alleging, in substance, that on the 28th of December, 1896, while he was an officer of the police department of the city and county of New York, charges were preferred against him as such officer for official misconduct; that on the 3d of February, 1897, such charges were dismissed by the board of police commissioners, and that by reason of the premises he was compelled to incur and expend for reasonable counsel fees and expenses the sum of $11,500 and upwards. He asked for the appointment of a referee to hear and examine into the claim, and report his determination to one of the justices of the supreme court, pursuant to chapter 700 of the Laws of 1899. Such application was denied, and the order made accordingly was unanimounsly affirmed by the appellate division.William F. S. Hart, for appellant.

John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for respondent.

VANN, J.

The statute under which this proceeding was instituted provides for the appointment of a referee ‘to hear, examine into, and report’ the amount of reasonable counsel fees and expenses paid or incurred by a city or county officer in successfully defending himself in any trial or proceeding ‘to remove him from office or * * * to convict him of any crime’ alleged to have been committed ‘in the performance of or in connection with his official duties,’ and that the amount allowed by the referee, when confirmed by the court, be paid by the issue of revenue bonds, to be included in the taxes levied for the following year in the city or county affected. Laws 1899, c. 700. Another part of the act provides for the payment of similar claims by the state, but, as the validity of that part is not involved in this appeal, no further allusion need be made to it. While other questions have been discussed before us, the main question is whether the legislature had power, under the constitution of our state, to pass this statute. That question has been passed upon several times by the supreme court, and the conclusion reached by every judge who considered it is that the statute is unconstitutional. In re Straus, 44 App. Div. 425,61 N. Y. Supp. 37;In re Jensen, 28 Misc. Rep. 379, 59 N. Y. Supp. 653, affirmed in 44 App. Div. 509,60 N. Y. Supp. 933;Chapman v. City of New York, 57 App. Div. 583,68 N. Y. Supp. 1135;In re Fallon, 28 Misc. Rep. 748,59 N. Y. Supp. 849;In re Labrake, 29 Misc. Rep. 87,60 N. Y. Supp. 989. Our examination has led us to the same result, and, as the discussion of the subject has been so thorough and able in the courts below, it is necessary for us to do little more than announce our conclusion. In a case which arose under the constitution of 1846 before it was amended, expressions were used by learned judges of this court which went beyond the requirements of the decision they made. Town of Guilford v. Board of Sup'rs of Chenango Co., 13 N. Y. 143. All that was actually decided was that the legislature had power to require a board of supervisors to assess upon the taxable property of a town the amount which highway commissioners had been compelled to pay for costs in an action commenced by them pursuant to the direction of the voters of the town. The payment of such a claim was not an act of charity, as it rested on a any particular or specified kind of property.' declared in one of the opinions that ‘the legislature has the right to appropriate the public moneys for local or private purposes, and to impose a tax upon the property of the whole state, or any portion of the state, or any particular or specified king of property.’ In another opinion it was said: ‘The legislature is not confined, in its appropriation of the public moneys or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice in the largest sense of those terms, or in gratitude or charity.’ Subsequent cases, following the dicta, rather than the decision, led to results which, as it is said, induced the people in 1874 to amend the constitution by adding sections 10 and 11 to article 8. Section 11 was amended in 1884 by adding further provisions, and the substance of both sections appears in the revised constitution of 1894 (article 8, §§ 9, 10). Section 9 is not now important, as it relates to the giving or lending of the credit or money of the state; but section 10 makes it a part of our fundamental law that ‘no county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, * * * nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.’ It has been held that this provision does not prevent the legislature from authorizing the payment by a municipal corporation of a claim which, although it could not be enforced by the courts, is founded in justice, supported by a moral obligation, and could have been legally created if the proceedings of the local authorities had been regular. Wrought-Iron Bridge Co. v. Town of Attica, 119 N. Y. 204-211, 23 N. E. 542. So it may be argued that payment of a claim otherwise valid, but against which the statute of limitations had run in favor of a municiapal corporation, or of one for money expended or services performed for the benefit of a city without lawful authority, might be authorized or required by the legislature. City of New Orleans v. Clark, 95 U. S. 644, 24 L. Ed. 521;Friend v. Gilbert, 108 Mass. 108;Brewster v. City of Syracuse, 19 N. Y. 116;Brown v. Mayor, etc., 63 N. Y. 239;Mayor, etc., of New York v. Tenth Nat. Bank, 111 N. Y. 446, 18 N. E. 618. If a legal liability to pay once existed, but has been suspended or barred in some technical way short of substantial satisfaction, a moral obligation to pay still exists, which is recognized both by statute and common law, Code Civ. Proc. § 395; Tebbetts v. Dowd, 23 Wend. 379-382; Busw. Lim. § 36. In the case before us, however, no benefit was conferred upon the city, and there was never a legal or moral obligation on the part of the city to pay the claim in question. For time out of mind, in all governments where the common law prevails, a person prosecuted for crime has been compelled to pay his own expenses when he had the means of doing so. People v. Board of Sup'rs of Onondaga Co., 4 N. Y. Cr. R. 102, affirmed in 102 N. Y. 691. If without means, the counsel assigned by the court served without pay, except under a recent statute a moderate allowance may be made in a capital case. Laws 1897, c. 427; Code Cr. Proc. § 308. This exception is founded on the theory that a fair trial cannot be had without the aid of counsel, and that money paid from public funds to counsel appointed by the court for a prisoner without means is paid for a public purpose. The proceeding instituted against the appellant was not a prosecution for crime, but to discipline or remove him for misconduct as a public officer. There was no authority, statutory or otherwise, to appoint counsel to defend him, and no attempt was made to do so. It was necessary for him to employ and pay his own counsel, as has always been the case with others similarly situated....