The act of 1875 (Chap. 605), and that of 1879 (Chap. 213), construed together, clearly indicate an intention to limit the compensation of the county treasurers of Monroe and Seneca counties to the salaries authorized by the sixth section of the act of 1875, and to take from them the percentages to which they were formerly entitled on State as well as on other funds.
The sixth section of the act of 1875 provides that such treasurers, whether elected or appointed, shall receive for their services as such treasurers an annual salary to be fixed by the board of supervisors, and that they shall not receive to their own use any interest, fees or other compensation for their services as such treasurers, except in proceedings for the sale of land, etc.
Although the money received by them for State taxes is collected for the benefit of the State, the county treasurers receive it by virtue of their office of county treasurer. They are county, and not State officers, and in receiving and depositing the State money, they discharge in behalf of the county an obligation resting upon it. *Page 536
Under the Revised Statutes county treasurers were entitled to retain to their own use, as compensation for their services, a commission of one per cent on all moneys received and paid out by them. (1 R.S. 370, § 26.)
By chapter 189 of the Laws of 1846, the several county treasurers of this State were to receive for their services, instead of the fees then allowed by law, such compensation as should be fixed by the boards of supervisors of their respective counties, not exceeding one-half per cent for receiving, and one-half per cent for disbursing, the moneys received and disbursed, and in no case to exceed the sum of $500 per annum. This act was not applicable to the counties of New York and Kings.
There can be no doubt that by this act the boards of supervisors were empowered to fix the compensation of county treasurers for receiving and paying out State as well as county funds.
The act of 1846 was amended by chapter 110 of the Laws of 1871, by providing that, in addition to the compensation fixed by the boards of supervisors, county treasurers should be entitled to retain a commission of one per cent on every dollar belonging to the State which they should receive and pay over; but in no case to exceed the sum of $500, and that the act should not apply to the counties of New York, Kings, Albany, Otsego, Onondaga, Erie and Westchester.
The act of 1875 applied to the county treasurers of the counties of Seneca and Monroe only. It provided for their compensation by an annual salary, and that they should not receive to their own use any other compensation for their services as such treasurers. It did not in terms refer to the one per cent commission allowed under the Revised Statutes, and the acts of 1846 and 1871, upon moneys collected for the State, but simply provided that no compensation in addition to their salary should be received by county treasurers for their own use for their services as such, and repealed all acts, parts of acts and special laws inconsistent therewith. If any doubt could be entertained as to the applicability of this act to *Page 537 commissions on State moneys, such doubt is dispelled by reference to the act of 1879 (Chap. 213), which amends the act of 1875, applicable to Seneca and Monroe counties, by adding section 12, declaring that "nothing in this act contained shall be construed as preventing the treasurers of the said counties from retainingfor the benefit of their counties respectively the same compensation for receiving and paying the money belonging to the State every year as that allowed by chapter 110 of the Laws of 1871; but the comptroller is hereby authorized to allow to the said treasurers for the benefit of their respective counties, on the State taxes heretofore and hereafter received and paid over by them, where not already allowed, the compensation provided by said chapter 110."
These enactments, relating to the same subject, should be construed as if contained in the same act, and in fact the provision last cited is incorporated by amendment in the act of 1875. Thus construed they are very plain, and show that their intention was not to relieve the State of the burden of the commission of one per cent which, under the Revised Statutes and the acts of 1846 and 1871, was chargeable on the quota of the State taxes collected in each county, but simply to preclude the treasurers of the counties of Monroe and Seneca from retaining such commission to their own use, and to confine them to the salaries paid by the boards of supervisors, at the same time authorizing them to retain or receive such commission for the benefit of their respective counties. In this manner the counties are indemnified, in part, for the salaries paid to their county treasurers. The practice of the principal officers of the State in leaving undrawn, or paying over to the county treasurers so much of the funds collected for the State as would cover their commissions, is entirely in accord with this construction. It simply recognizes the liability of the State to bear these commissions, but does not affect the question whether they are to go to the counties or to the treasurers for their own use.
Our conclusion in this respect brings us to the questions *Page 538 raised by the respondents as to the constitutionality of the acts of 1875 and 1879.
The first objection is that the act of 1875 is a local bill and violates section 18 of article 3 of the Constitution which prohibits the passage of any private or local bill increasing or decreasing fees, percentages or allowances of public officers during the term for which such officers are elected or appointed.
Passing the question whether the act in question is a private or local bill, it is a sufficient answer to this objection that it did not in terms apply to county treasurers in office at the time of its passage, and as it might lawfully operate to affect the compensation of future treasurers, we must presume that such was the intention. (Kerrigan v. Force, 68 N.Y. 381.) Although it did not affect treasurers in office in 1875, it is not, for that reason, invalid as to the defendant, whose term did not begin until January 1, 1879.
Section 23 of article 3 is next referred to. This section directs the legislature by general laws to confer upon boards of supervisors such further powers of local legislation and administration as the legislature may from time to time deem expedient, but it contains nothing prohibitory.
The act does not contravene section 16 of article 3. All its provisions relate to the treasurers of the counties of Seneca and Monroe, and the subject is sufficiently embraced in the title. The provisions authorizing the supervisors to designate the banks in which such treasurers shall deposit the State moneys, and directing such banks to give bonds, pay interest and keep accounts with the State treasurer, are all parts of the system established by the act for the custody and disposition of the State funds collected by the treasurers designated in the title of the act, and are connected with the same subject.
The title of the act of 1879 is, in our judgment, sufficient. It not only refers to the act of 1875, but it recites the title of that act, which expresses the subject of the act amended, and the amendment is simply declaratory of the meaning of that act.
It is further claimed that the act of 1879 appropriates *Page 539 public money for local purposes, and consequently, under section 9 of article 1 of the Constitution, required a two-thirds vote.
The act does not appropriate any money of the State. It simply directs that the commissions which, under former laws, were payable to the county treasurers as their own compensation, be retained by or allowed to them for the benefit of their respective counties instead of being retained by them for their own benefit. This money belonging to the counties, having come under the control of the State treasurer by being deposited to his credit, he was authorized to allow the same to the treasurers for the benefit of their respective counties. The money in question in this action was not collected until after the passage of the act.
But beyond these answers to the objections raised, is the fundamental one that the defendant having received these funds by virtue of the act which directed that they should be allowed to him for the benefit of his county, he cannot set up the invalidity of the act under which he received the money, and on that ground claim to retain it for himself, as against the party for whose benefit he received it. (Ross v. Curtiss, 31 N.Y. 606; People v. Mead, 36 id. 224; First Nat. Bk. v.Wheeler, 72 id. 201.)
The judgment should be reversed and a new trial ordered costs to abide the event.
All concur.
Judgment reversed.