Opinion
December 30, 1915.
Egburt E. Woodbury, Attorney-General [ Alfred L. Becker and James S.Y. Ivins, Deputies, of counsel, with him on the brief], for the plaintiff.
John Kadel, for the defendant James V. Ganly, as clerk of the county of Bronx.
Terence Farley, for the defendant The City of New York.
The following is the state of facts agreed upon by the parties to this controversy (certain tabulations being omitted as having no bearing upon the questions of law involved): "The defendant, James V. Ganly, is and at all times hereinafter mentioned, has been the County Clerk of the County of Bronx.
"Prior to the taking effect of chapter 18 of the Laws of 1915, the county clerk of Bronx received from notaries public qualifying in this county, fees at the rate of $2.50 each, of which he remitted $2 to the State Treasurer and 50 cents to the city chamberlain.
"After Chapter 18 of the Laws of 1915 took effect the defendant Ganly, as County Clerk of Bronx, received from notaries public, qualifying in this county, fees at the rate of $10 each. * * *
"The defendant Ganly retained the sum of $3 out of each $10 fee and remitted to the State Treasurer the sum of $7 of each such fee. The $3 retained by the defendant Ganly from each such fee was remitted by him to the Chamberlain of the defendant, the City of New York.
"The plaintiff claims that the defendant Ganly, under provisions of various statutes applicable, should have remitted to the State Treasurer the sum of $9.50 of each $10 fee, and retained only 50 cents of each such fee received. Defendants deny this and claim that the City of New York was entitled by law to retain the $3 of each fee remitted to it by defendant Ganly."
The question at issue arises under the Bronx County Act (Laws of 1912, chap. 548), which created the county of Bronx out of territory which had theretofore been a part of the county of New York. By that act all fees received by county officials, except as therein otherwise provided, were required to be paid into the treasury of the city of New York. (§ 4, as amd. by Laws of 1913, chap. 266.) Hence the interest of said city in this controversy.
Section 11 of the act provides as follows: "All acts and parts of acts specially applicable to the county of New York or that portion of the borough of Bronx formerly part of the county of Westchester annexed to the city of New York by chapter nine hundred and thirty-four of the laws of eighteen hundred and ninety-five and now in force in the borough of Bronx and not inconsistent with this act shall continue in full force and effect in the county of Bronx, as though the said county had been in existence at the time of the passage of said acts, [and] as though the name of the said county of Bronx had appeared in said acts and parts of acts wherever the name of the county of New York or the county of Westchester appears in said acts or parts of acts."
At the time of the passage of the act the fees to be paid by notaries public upon appointment and qualification were prescribed by section 103 of the Executive Law (Consol. Laws, chap. 18; Laws of 1909, chap. 23), which provided inter alia that "No county clerk shall file the oath of office of any notary public until there shall be paid to such county clerk, by such notary public:
" 1. If he reside in New York county or Kings county, ten dollars;
"2. If he reside in a city having a population, as shown by the then last preceding Federal or State enumeration, of more than fifty thousand, and less than six hundred thousand, five dollars;
"3. If he reside elsewhere, two and one-half dollars.
"Neither the clerk of the county of New York, nor the county clerk of the county of Kings, shall file a certificate of the appointment and qualification of a person appointed to be a notary public in and for any county other than New York or Kings, until such notary public shall pay such clerk seven and one-half dollars."
The disposition of such fees was provided for in section 104 of the Executive Law (as amd. by Laws of 1909, chap. 240) as follows: "§ 104. Disposition of fees paid by notaries public. The county clerk of each of the counties of New York, Kings and Erie may appoint an assistant to be known as notarial clerk. The county clerk of Erie county may retain, from each fee so paid by a notary public as a condition of filing his oath of office, one dollar and a half. The clerk of each of the counties of New York and Kings may retain, from each fee so paid by a notary public as a condition of filing his oath of office, three dollars, but not exceeding the total amount of fifteen hundred dollars in the county of Kings nor three thousand dollars in the county of New York in any one year, and each of the county clerks of the counties of New York, Kings and Erie may apply the amount so retained by him in payment of the salary of the notarial clerk or clerks in his office. The county clerk in each county other than the counties of New York, Kings and Erie, may retain from each fee so paid by a notary public as a condition of filing his oath of office, fifty cents. The amounts so retained by a county clerk of any county shall be in full payment for all his services and disbursements connected with the appointment and qualification of notaries public to act as such in such county. If the office of any such county clerk is a salaried office, such county clerk shall pay over the sum so retained by him, to the officer to whom fees of such county clerk are required by law to be paid. The county clerk of each county shall, within ten days after the end of each month, pay over to the State Treasurer all fees received by him from notaries public under the provisions of this chapter during said month, after having deducted so much thereof as he is authorized to retain under the provisions of this section."
We think that there can be no doubt that, as the legislation above quoted originally stood, the fee to be paid by notaries public in the county of Bronx was ten dollars, the same as was payable in the county of New York. The provision of section 11 of the Bronx County Act was not, as it is sometimes attempted to be read, that "all special acts and parts of acts applicable to the county of New York," etc., shall continue in full force and effect in the county of Bronx, but that "all acts and parts of acts," whether special or general, if specially applicable to the county of New York, should be applicable in full force and effect in the county of Bronx as though the name of the county of Bronx had appeared in said acts and parts of acts wherever the name of the county of New York appears therein. The reason for this enactment is plain enough. The former county of New York, out of which the county of Bronx was carved, differed in many respects from any other county in the State. It was almost wholly urban and in extent and density of population far outstripped any other county. It had consequently been found necessary from time to time not only to pass special acts relating to the county, but also to insert in general acts special provisions for that county. Of this latter class of enactments sections 103 and 104 of the Executive Law are good examples. The object of section 11 of the Bronx County Act was to write into every statute wherein the county of New York was specially mentioned the name of the county of Bronx. Thus that portion of section 103 of the Executive Law prescribing the fees to be paid by a notary public in New York county was intended to read, after the passage of the Bronx County Act, as follows: "1. If he reside in New York county, Bronx county or Kings county, ten dollars," and section 104 relating to the disposition of the fees was intended to be read: "The clerk of each of the counties of New York, Bronx and Kings may retain, from each fee so paid by a notary public as a condition of filing his oath of office, three dollars * * *."
It is urged, however, that the Legislature has given a different construction to the acts above referred to, by adopting in 1915 (Laws of 1915, chap. 18) an amendment to section 103 of the Executive Law, by which the words "Bronx county" are actually written into the act, precisely as, in our opinion, they were legally written therein by the adoption of section 11 of the Bronx County Act above quoted. The argument appears to be that by adopting this amendment the Legislature impliedly expressed the opinion that section 11 of the Bronx County Act did not originally so operate upon sections 103 and 104 of the Executive Law as to make applicable to the county of Bronx the provisions of these sections specially applicable to the county of New York. We do not so understand it. On the contrary, as we understand it, the Legislature passed the act in 1915 for the purpose of carrying out the intent of section 11 of the Bronx County Act. The most that can be said of the act is that even if the Legislature of 1915 had construed the acts of 1909 and 1912 in a contrary sense to that which we adopt, that construction would not be of binding force, for it is the courts who must finally decide the proper meaning and construction of statutes.
In our opinion it was the duty of the county clerk of Bronx county, from the beginning, to have collected a fee of ten dollars from each notary public appointed for and qualifying in that county, and of each amount so collected to have paid three dollars into the treasury of the city of New York and remitted seven dollars to the State treasury.
There must be judgment, therefore, in favor of the defendants, but without costs, as stipulated in the submission.
INGRAHAM, P.J., and SMITH, J., concurred; McLAUGHLIN and CLARKE, JJ., dissented.
Judgment ordered for defendants, without costs. Order to be settled on notice.