This is a case submitted under section 372 of the Code.
On the 13th day of May, 1872, George W. Miller, superintendent of the insurance department of the State of New York, resigned his office, the relator having been previously appointed, and being Lien the deputy of said superintendent. The vacancy, occasioned by the resignation of Miller, was not filled by the appointment and *196qualifying of a successor, until November 20,1872, when such successor entered upon the duties of his office. From the time of the resignation of Miller, until his successor entered upon the duties of his office, the relator acted as, and performed all the duties of, superintendent of the insurance department, in accordance with the provisions of the statute in such case made and provided. He claims to be entitled to the salary of superintendent during the time in which he performed the duties of such office, and called upon the comptroller to draw his warrant therefor. This, the comptroller refused to do, denying the validity of his claim to such salary; and the question is submitted to the court whether or not he is entitled to such salary.
By provision of the act establishing the insurance department (Laws of 1859, ch. 366, § 2), “the chief officer of said department shall be denominated the superintendent of the insurance department. He shall be appointed by the governor, by and with the advice of the senate, and shall hold the office for the term of three years. He shall employ, from time to time, the necessary.clerks. * * * He shall appoint one of the said clerks to be Ms deputy, who shall possess the poiuers, and perform the duties attached by law to the office of principal, during a vacancy in such office, and duriny tKe absence or inability of his principal. Within fifteen days from the time of notice of their appointment, respectively, the superintendent and his deputy shall take and subscribe the oath of office prescribed by the constitution, and file the same in the office of the secretary of State; and the said officers shall be, in all respects, subject to the provisions of the sixth title of chapter five of the Revised Statutes, so far as the same may be applicable.” One of said provisions is, “ every office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: 1. The death of the incumbent. 2. His resignation.” 1 R. S. 1st ed., 122, § 34.
On the resignation of Miller, the office of superintendent became vacant, notwithstanding the existence of the deputy, and the powers conferred upon him to perform all the duties of principal — and that vacancy continued until a successor was appointed and qualified. The deputy did not, therefore, become superintendent of the insurance department, upon the resignation of his principal, although he thereupon became vested with the powers of the princi- ■' pal, and obligated to perform the duties attached by law to the *197office of principal, until a principal should he appointed. It does not follow, because the deputy is invested with the powers, and charged with the performance of the duties of superintendent, that he becomes superintendent. His office is still that of deputy. The powers and duties of the deputy are enlarged — the office is the same as before. The deputy, upon whom new powers are thus conferred and new obligations imposed, is still deputy, and entitled only to the salary which the law has fixed for the deputy.
This result seems to me logical and conclusive, for I cannot concur in the opinion that the right to the superintendent’s salary lurks in the" word “ powers ” contained in the act. When it is said he shall appoint a deputy, “ who shall possess the powers of principal during a vacancy,” etc., it cannot, by any authorized construction, include the right to the principal’s salary. It is the official powers, powers to be exercised in the performance of official acts, that are intended. The right to compensation, fixed by law, is not one of the powers conferred upon a public officer. That is a mere personal right. His powers are given to be used for the public. His right to compensation is to be claimed and. enforced, for his individual benefit. It would be a very unusual and incorrect use of language to say that one of thé powers of the superintendent is to claim and receive $7,000 per year for his services. That'is a right not a power, the two are not synonymous.
Again, we see that, not only during a vacancy in office, but upon every temporary absence or inability of the principal, the deputy is invested with the same powers, and charged with the same duties. If during a vacancy he is entitled to the salary of the superintendent, he is equally so during such temporary absences and inabilities of the principal. The act makes no distinction in favor of a vacancy, but the three occasions are coupled together, “ who shall possess the powers, etc., during a vacancy in such office, and during the 'absence or inability of his principal,” is the language of the act. It is not pretended, as it obviously cannot properly be, that the deputy, although invested with the powers and charged with the duties of the principal, during his absence or inability, has a right to his salary accruing during such absence or inability, and yet, the statute gives it to him equally upon these latter occasions, as during a vacancy.
Unless he can be made actually superintendent during a vacancy, it seems to me quite impossible to hold that he is, during such time, *198entitled to the salary of the superintendent, and this we have already seen is impossible. He is still the deputy with the powers and duties fixed by law, as belonging to his office, as such, in the contingencies mentioned. His salary for the performance of all such duties is fixed by law, and to that salary only is he entitled for ■their performance.
If he were, as in the cases cited by the counsel from opinions of the attorney-generals of the Hnited States, from 3 Story’s Reports, and 1 Court of Claims Reports, acting in the office by special appointment, the case would be quite different. In such case he would be superintendent of the insurance department ad interim,"as Dickins, in the case of Dickins v. United States, 1 Court of Claims Rep. No. 9, was secretary of the treasury ad interim, and the court held him entitled to the salary of the secretary of the treasury, because he was, in addition to being chief clerk in that department, independently of such office, also secretary of the treasury, by appointment of the president. It was not by virtue of his being chief clerk, that he became, upon the occasion of his principal’s sickness, secretary ad interim. Any other person might have been appointed by the president to that position. There was no legal objection to his holding two offices, and he* did, upon his appointment, hold both the office of chief clerk, and secretary. Says Judge Black-ford : “ He held two offices at those times, and there was no law to prohibit him from doing so. He discharged the duties of both offices, and must be entitled to compensation accordingly.”
The same distinction exists between the cases cited from the other authorities above referred to, and the case at bar. There the claimants performed the duties for which they demanded compensation, not as duties imposed upon the incumbents of the offices which they already held, as such, but by virtue of new appointments making them incumbents of other offices, independent of those already held by them.'
Here the relator performed the duties of superintendent, jiot by virtue of a new appointment to that office, but because they became duties of his office of deputy, pursuant to the statute creating such office, and under which he held it.
The relator’s counsel invokes the application, to his case, of the rule of law that “ services rendered by one person for another, at his request, create a just claim for compensation, and the law implies a contract to pay,” and argues that from this rule “it follows *199as a logical conclusion that he (the relator) who, authorized by law, does the work of an office, not simply as a subordinate, but as the chief; not merely as the hand that executes but as the head that plans, is entitled to that - compensation which the legislature has said the services are worth,” meaning, I suppose, the salary provided by law for the head of the department.
In this conclusion, has not the learned counsel overlooked the fact that the relator undertook to do the work thus referred to, in the event which happened, of the resignation of his principal, when he took upon himself the office of deputy, as a duty belonging to that office, in that event; and to do it for the compensation fixed as the salary of that office ? It seems tó me that he was acting under a special contract, which fixed his compensation, and that he cannot claim either the salary of the superintendent, specifically, or resort to a quantum meruit as the measure of his compensation and claim, the value of his services to be what the legislature fixed as the salary of the superintendent. The cipntract being thus special, there is no room for the operation of the implied contract referred to.
Even if the duty to do the work of the superintendent had been cast upon the relator by the legislature, after he entered upon his office, still he would be confined to his .salary for his compensation. Says Judge Broktsoh, in The People v. Supervisors of New York, 1 Hill, 362, 367: “ It is impossible for a salary officer to make title to an increased compensation on the sole ground that a new duty has been cast upon him by the legislature. There are few State officers, whether executive or judicial, who have not often been charged with new duties, and yet no one has, I presume, ever thought that this gave him a legal title to increased compensation. Whether the pay shall be increased with the burden is a question which addresses itself to the legislature. The courts have nothing to do with it.”
I am unable, in any view which I can take of this case, to see any legal ground upon which the relator can claim the salary of the superintendent, and must therefore conclude that it was not the duty of the comptroller to issue his warrant to the relator therefor.
Judgment must be entered for the defendant denying the right of the relator to the salary allowed by law to the said superintendent, and denying his application for a mandamus, with costs.