author: Fulo, J. Dye, J.

text:
    In the Matter of John I. O’Day, Respondent, against Charles T. Yeager, as Surrogate of Erie County, Appellant, and Robert W. McNulty, Intervenor-Appellant.
    Argued March 9, 1955;
    decided June 9, 1955.

      Elmer R. Weil, County Attorney (Wortley B. Paul of counsel), for Charles T. Yeager, Surrogate of Erie County, appellant.
    I. If the position of clerk of the Surrogate’s Court of Erie County is merely a subordinate one, and the clerk is, as the Appellate Division has indicated in its Per Curiam opinion, merely a ‘ ‘ subordinate employee ’ ’, then there was no authority to fill such position without a competitive examination; and since petitioner has never taken such a competitive examination, he has never been legally appointed and employed and, therefore, he cannot be restored to a position which he never legally held. (Matter of Friedman v. Finegan, 268 N. Y. 93; Chittenden v. Wurster, 152 N. Y. 345; Matter of Neary v. O’Connor, 173 Misc. 696, 260 App. Div. 986; Matter of Rooney v. Rice, 274 N. Y. 347; People ex rel. Murphy v. Prendergast, 165 App. Div. 186, 214 N. Y. 664; People ex rel. Wren v. Goetting, 55 Hun 611, opinion in 8 N. Y. S. 742, 133 N. Y. 569; Matter of Volgenau v. Finegan, 163 Misc. 554, 250 App. Div. 757; Matter of O’Keefe v. Clark, 238 App. Div. 175; People ex rel. Crummey v. Palmer, 152 N. Y. 217; Matter of Meenagh v. Dewey, 286 N. Y. 292.) II. If the determination made by the Appellate Division herein is right, subdivision 3 of section 13 of the Civil Service Law, under which petitioner was appointed, is unconstitutional because it violates section 6 of article Y of the Constitution in placing in an exempt position, without examination, a person who, if he is a mere subordinate clerk or employee, must be selected by competitive examination, since an examination for such a position is, on its face, practicable under that court’s reasoning. Petitioner has therefore never been legally appointed to, nor has he ever legally held, the position of clerk of the Surrogate’s Court of Erie County. (Hale v. Worstell, 185 N. Y. 247; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Ottinger v. State Civil Service Comm., 240 N. Y. 435.) III. Since the position involved is “ Clerk of the Surrogate’s Court ” which is in the exempt class of the civil service, pursuant to subdivision 3 of section 13 of the Civil Service Law, a detailed discussion of what powers and duties the Surrogate’s Court Act and other statutes give to such position is unnecessary. The very law itself by creating the exemption makes the position one of such trust, confidence and responsibility that it is not a mere subordinate position. (Matter of Friedman v. Finegan, 268 N. Y. 93; People ex rel. Ryan v. Wells, 176 N. Y. 462; Matter of Glassman v. Fries, 271 N. Y. 116.) IV. The duties of the position of clerk of the Surrogate’s Court in Erie County inherently involve a confidential relationship with the surrogate and the exercise of the highest duties of trust, confidence and responsibility as well as the delegation of some sovereign power. (Chittenden v. Wurster, 152 N. Y. 345; Matter of Neary v. O’Connor, 175 Misc. 696, 260 App. Div. 986; People ex rel. Corkill v. McAdoo, 113 App. Div. 770; People ex rel. Earl v. England, 16 App. Div. 97; People ex rel. Murphy v. Prendergast, 165 App. Div. 186; People ex rel. Wren v. Goetting, 55 Hun 611, opinion in 8 N. Y. S. 742, 133 N. Y. 569; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; People ex rel. Hoefle v. Cahill, 188 N. Y. 489; Matter of Byrnes v. Windels, 265 N. Y. 403; People ex rel. Corkhill v. McAdoo, 98 App. Div. 312; Matter of Pinkus v. Village of Hempstead, 294 N. Y. 719; Matter of Mylod v. Graves, 274 N. Y. 381; Matter of Smith v. Board of Stadium & Memorial Auditorium of Buffalo, 197 Misc. 529; Matter of Huber v. Stephan, 156 Misc. 131.) V. As to a part of his duties, the clerk of the Surrogate’s Court of Erie County was a ‘ ‘ deputy ’ ’ within the meaning and intent of subdivision 1 of section 22 of the Civil Service Law. (Olmsted v. Meahl, 219 N. Y. 270; Matter of Smith v. Stadium & Memorial Auditorium

      of Buffalo, 197 Misc. 529; Matter of Cappon v. Cleere, 177 Misc. 1027; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Mylod v. Graves, 274 N. Y. 381; People ex rel. Hoefle v. Cahill, 188 N. Y. 489.) VI. The decision of the Supreme Court at Special Term in the case of Matter of Cappon v. Cleere (177 Misc. 1027) is not an authority adverse to the determination made in the case at bar. (People ex rel. Hoefle v. Cahill, 188 N. Y. 489; Matter of Seeley v. Stevens, 190 N. Y. 158; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Mylod v. Graves, 274 N. Y. 381.)

      Michael Catalano for intervenor-appellant.
    I. A surrogate may remove at pleasure a clerk of the Surrogate’s Court. II. The clerk of the Surrogate’s Court of the County of Erie is a deputy within the meaning of section 22 of the Civil Service Law and, therefore, may be removed at the pleasure of the surrogate. III. The clerk of the Surrogate’s Court of the County of Erie may be removed at the pleasure of the surrogate, whether or not such clerk be a veteran or a volunteer fireman. (Matter of Rohr v. Kenngott, 288 N. Y. 97; Matter of Smith v. Conway, 198 Misc. 886, 278 App. Div. 566; Matter of Glassman v. Fries, 271 N. Y. 116; Matter of Neary v. O’Connor, 173 Misc. 696, 260 App. Div. 986; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Friedman v. Finegan, 268 N. Y. 93; Matter of Smith v. Board of Stadium & Memorial Auditorium of Buffalo, 197 Misc. 529; Heath v. Creagh, 197 Misc. 537, 276 App. Div. 948; Matter of Cappon v. Cleere, 177 Misc. 1027.) IV. The Surrogate of Erie County may properly have a deputy in the person of a clerk. V. The Surrogate of Erie County and his clerk have concurrent powers.

      John I. O’Day, respondent in person.
    I. The clerk of the Surrogate’s Court is not an “ independent officer ”, but is, in all things, a subordinate of the surrogate. (People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; Matter of Mylod v. Graves, 274 N. Y. 381; Matter of Christey v. Cochrane, 211 N. Y. 333; People ex rel. Ray v. Henry, 47 App. Div. 133; People ex rel. Fallon v. Wright, 150 N. Y. 444; Matter of Mafera v. Pasta, 265 N. Y. 552; Matter of Kiernan v. Ingersoll, 265 N. Y. 553; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Morris
      v. Neider, 259 App. Div. 49; Matter of Dickinson v. Monroe, 180 Misc. 714; Matter of Mercer v. Dowd, 288 N. Y. 381; Matter of Cappon v. Cleere, 177 Misc. 1027.) II. The clerk of the Surrogate’s Court is neither “ private secretary, cashier or deputy ”. (Matter of Smith v. Conway, 198 Misc. 886, 278 App. Div. 566, 302 N. Y. 951; Matter of Mylod v. Graves, 274 N. Y. 387; Matter of Byrnes v. Windels, 265 N. Y. 403; Heath v. Creagh, 276 App. Div. 948; Matter of Mafera v. Pasta, 265 N. Y. 552; Matter of MacMaster v. Harvey, 265 N. Y. 555; Matter of Kiernan v. Ingersoll, 265 N. Y. 553; Matter of Mercer v. Dowd, 263 App. Div. 932, 288 N. Y. 381; Matter of Steen v. County of Nassau, 179 Misc. 821, 265 App. Div. 858; Matter of Petrillo v. Lynn, 243 App. Div. 796, 268 N. Y. 673; Roderigas v. East Riv. Sav. Inst., 76 N. Y. 316; Marc v. Pinkard, 133 Misc. 83.) III. The fact that a position is protected by section 22 of the Civil Service Law does not indicate that it is improperly classified as “ exempt ”. (Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Mylod v. Graves, 274 N. Y. 381; Matter of Byrnes v. Windels, 265 N. Y. 403.) IY. The power of appointment and removal of clerks, granted to the surrogate by section 21 of the Surrogate’s Court Act, is subject to the provisions of the Civil Service Law. (People ex rel. McKeon v. Ludwig, 215 N. Y. 389; Matter of Kiernan v. Ingersoll, 242 App. Div. 658, 265 N. Y. 553.)
   Fulo, J.

On January 1, 1950, petitioner, an honorably discharged veteran of World War II, was appointed clerk of the Surrogate’s Court of Erie County by Surrogate Buscaglia at a salary of $9,200 a year. Following gubernatorial appointment of Charles T. Yeager as surrogate to fill the vacancy that had occurred in that office, petitioner’s appointment was revoked, pursuant to section 21 of the Surrogate’s Court Act, by the new surrogate on December 31, 1953. In this article 78 proceeding, brought to effect his reinstatement, petitioner, claiming the protection accorded veterans by section 22 of the Civil Service Law, alleges that his removal was illegal and void for noncompliance with its provisions.

It is section 21 of the Surrogate’s Court Act which provides both for the appointment and discharge of the clerk; it reads, in part, as follows: ‘ By a written order filed and recorded in his office, which he may in like manner revoke at pleasure, a surrogate may appoint a clerk of the surrogate’s court ”. The fact that the surrogate is given the power to remove ‘ ‘ at pleasure ” does not render section 22 of the Civil Service Law inapplicable or prevent the veteran from asserting his rights under that section, if its coverage otherwise extends to him. (See Matter of Mercer v. Dowd, 288 N. Y. 381, 384; Matter of Bennett v. Robbins, 240 N. Y. 553; Matter of Seeley v. Stevens, 190 N. Y. 158, 165, 166; see, also, Matter of Byrnes v. Windels, 265 N. Y. 403; People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 496.)

The Civil Service Law provision recites, in subdivision 1, that no person, “ holding a position by appointment or employment ” in the state or in the several counties or in any branch of tnv public service, who is an honorably discharged war veteran, “ shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges ”. The protection, however, does not extend to all veterans, for it is explicitly declared that “ Nothing in this subdivision shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.” The courts have held that section 22 ‘‘ was intended to apply only to those holding positions of a subordinate nature,” and, consequently, to the list of persons specifically excluded from the protective coverage of the statute must be added those who are officials filling independent positions. (Matter of Mylod v. Graves, 274 N. Y. 381, 384; see, also, People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 504.)

The court at Special Term dismissed the petition upon the ground, among others, that the petitioner is an independent officer, to whom specific ‘‘ duties were granted ” by statute. The Appellate Division reversed, directing that petitioner have the relief sought; it was that court’s conclusion that the clerk is a ‘‘ subordinate employee,” always subject, in the exercise of his powers and duties, to the approval and direction of the surrogate.

Whether a particular person is an independent officer or a subordinate employee ‘ ‘ is not always an easy matter to determine.” (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 387.) No automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts. (Compare, e.g., Matter of Mercer v. Dowd, supra, 288 N. Y. 381, with Matter of Pinkus v. Village of Hempstead, 294 N. Y. 719; see, also, Matter of Bergerman v. Byrnes, 305 N. Y. 811; Matter of Mafera v. Pasta, 265 N. Y. 552.) The decisions do, however, contain certain guides and, if we were to attempt a formulization, it would be this — he is an independent officer whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment. (See Matter of Mylod v. Graves, supra, 274 N. Y. 381; Matter of Christey v. Cochrane, 211 N. Y. 333; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495; see, also, Matter of Bergerman v. Byrnes, supra, 305 N. Y. 811.)

With that in mind, we turn to the Surrogate’s Court Act, from which the clerk of the court derives his authority to function, his powers and his duties. As already stated, it is section 21 of that statute which creates the office, providing that it shall be filled by appointment by the surrogate. And it is section 32 which prescribes most of the clerk’s powers, to be exercised by him, it is worthy of note, “ concurrently with the surrogate ”, Thus, he may certify and sign * * * any of the records of the court ” (§32, subd. 1), including records and papers “ left uncompleted or unsigned ” by another surrogate (§ 20, subd. 9). He may “ issue any citation, subpoena or other mandate to which a party is entitled as of course, either unconditionally or on the filing of any paper ” (§ 32, subd. 2). He may adjourn ” for a period not to exceed thirty days ‘ ‘ any matter, when the surrogate is absent from his office, or unable * * * to attend to the same ” (§ 32, subd. 4), and he may “ charge and receive ” certain specified fees “ to the use of the county ” (§ 29). The existence of powers such as these was stressed by Judge Cullek — later Chief Judge of the Court of Appeals — as demonstrating that the clerk of another court, a district police court, was an independent officer. (See People ex rel. Earl v. England, 16 App. Div. 97, 100; People ex rel. Wren v. Goetting, 55 Hun 611, opinion in 8 N. Y. S. 742, affd. on other grounds, 133 N. Y. 569.)

Nor does this specification exhaust the powers conferred by the statute. Included among the clerk’s most important functions, and they certainly are not the attributes of a mere subordinate employee, is the power to take proof of a will ” (§32, subd. 8) as well as the power “ to take * * * and report the testimony in any proceeding ” (§ 32, subd. 10). It is true that he may not pass upon the issues involved (§ 32, subd. 10) or take testimony bearing on proof of a will if demand is made for examination of subscribing witnesses or if objections to probate are pending (§ 32, subd. 8). But, when we consider the impressive number of wills probated in Erie County, it is clear that the duties of the clerk encompass a vast range of responsibility, since, quite obviously, the surrogate himself could not possibly investigate all of the wills filed and considered in his court. (See Surrogate’s Ct. Act, § 144.)

No less significant is the further power of the clerk to “ authorize or deputize ” other clerks, with the surrogate’s approval, to sign his name, and exercise such of the other powers conferred upon him by * * * [section 32], as he shall designate ” (§ 32, subd. 6). And, although the surrogate may prohibit the clerk from exercising any of those powers, the statute specifically announces, the prohibition does not affect the validity of any act of the clerk or deputy clerk done in disregard of the prohibition.” Not only does this particular provision, subdivision 6, furnish legislative confirmation of the broad authority and extensive discretion vested in the clerk, but the statute, taken as a whole, manifests the heavy responsibility granted to him and the high confidence reposed in him, and goes far toward marking him as the one who has charge of the administrative work and machinery of the court. (See, also, Surrogate’s Ct. Act, §§ 31, 33.)

Petitioner attempts to minimize the importance of the powers thus assigned to the clerk by urging that they are all subject to the supervision and control of the surrogate. However, even though it is undoubtedly true that the surrogate has the final say in matters calling for a judicial decision, it is equally plain that the statute itself authorizes the clerk to perform many vital tasks on his own responsibility, not subject to the surrogate’s direction and, indeed, even in his absence.

As a matter of fact, one’s status as an independent officer is not affected because some of the duties entrusted to him may be “ more or less ministerial and clerical.” (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 387.) It is only necessary that he exercise “ some portion of the sovereign power, whether great or small.” (People ex rel. Hoefle v. Cahill, supra, 188 N. Y. 489, 494.) Moreover, the power of review which the surrogate has over some of the clerk’s actions does not in and of itself render him a subordinate employee. Many who have been denominated independent officers have been subject to some such control (see Matter of Mylod v. Graves, supra, 274 N. Y. 381; Matter of Christey v. Cochrane, supra, 211 N. Y. 333; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495; cf. Matter of Bergerman v. Byrnes, supra, 305 N. Y. 811); in Mylod, for instance, the determinations made by the tax appraiser for Dutchess County were subject to review and modification by the surrogate; in Jacobus; the decisions of the assessors of the City of New York were subject to correction by the board of revision; and, in Matter of Bergerman, the duties of the commissioner of records of the City Court of the City of New York — consisting almost entirely of the keeping of records — were to be “ performed under such conditions and regulations as may be approved by the presiding justice ” (Judiciary Law, § 177, subd. 2), and yet that fact was held not to alter the commissioner’s status as a principal executive officer ” within the meaning of subdivision 1 of section 13 of the Civil Service Law.

As solicitous as the courts have ever been on behalf of the veteran in civil service, we find it impossible to conclude that the clerk of a court, whose position, powers and duties stem from statute and who functions in a tribunal as busy and important as that of the Surrogate’s Court of Erie County, may be stamped a subordinate employee, so as to entitle him to the protection of section 22 of the Civil Service Law. Petitioner’s removal from office was not, therefore, regulated or controlled by the provisions of that statute.

The order of the Appellate Division should be reversed and that of Special Term, reinstated, without costs.

Dye, J.

(dissenting). I dissent and vote to affirm. I am unable to agree with the holding of the majority that petitioner, as clerk of the Surrogate’s Court of Brie County, was an “ independent officer ” rather than a “ subordinate employee ” and that, consequently, he is excluded from the protection from removal without charges or a hearing afforded to veterans in subordinate positions (Civil Service Law, § 22; Matter of Mylod v. Graves, 274 N. Y. 381; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; People ex rel. Fonda v. Morton, 148 N. Y. 156).

We are all in agreement that if we were to decide that the post in question is a subordinate position rather than an independent office, petitioner would be entitled to reinstatement. We are also in agreement that the marks or tests which distinguish an excluded independent officer from a covered employee are: (1) that he exercise some portion of the sovereign power (People ex rel. Hoefle v. Cahill, 188 N. Y. 489); and (2) that his office and his duties be prescribed by statute and that in the performance of his major duties he be not subject to the direction and control of a superior officer or, stated affirmatively, that he be subject only to such directions as the statute gives (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 384; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495). It matters not how important and responsible his duties be nor how much trust and confidence is placed in him, he is not an independent officer within the meaning of our decisions if he does not exercise some portion of the sovereign power or if he is subject to the direction and control of a superior officer. The mere statement of these well-grounded principles should be sufficient to refute the proposition that the usual clerk of a court is an independent officer (cf. Matter of Cappon v. Cleere, 177 Misc. 1027).

I now turn to the sections of the Surrogate’s Court Act which the majority point to as conferring upon this petitioner the status of an independent officer. As I read the statutes the contrary is manifest for nowhere is the petitioner authorized to exercise any of the surrogate’s powers of sovereignty and in every definition of power it is clear that he is subject to the direction and control of the surrogate at all times.

Section 33 requires the clerk of the Surrogate’s Court to keep a book and make entries in it — purely ministerial acts. Section 31 requires the parties to pay the travel and other expenses incurred in holding hearings away from the surrogate’s regular quarters.

Section 29 imposes a duty upon the clerk to collect fixed fees for the county for specified services. An examination of the details of this section discloses that there is left in the clerk no more discretion and independent judgment than there is in a parking meter. He is merely the name of the pipe through which the fees are channeled.

Section 32 defines the grant of power to the clerk and since main reliance is had on this section for the holding of the majority, that section must be carefully examined having in mind the realities of the everyday business of a busy Surrogate’s Court. Powers are conferred upon the clerk and the deputy clerk of the Surrogate’s Court of Erie County in 9 of the 11 subdivisions of section 32 and, it should be noted at the outset that the first paragraph of this section reads: “ The clerk and the deputy clerk of the surrogate’s court may severally exercise, concurrently with the surrogate, the following powers of the surrogate ”.

Under subdivision 1 the clerk may certify and sign any records of the court including all records or papers which a surrogate completed after having found them left uncompleted by his predecessor. By no reasonable interpretation of the language of subdivision 1 of section 32 and subdivision 9 of section 20 when read together can it be fairly said that power is conferred on the clerk to complete a record or paper left incomplete by a former surrogate. The clerk is authorized only to certify and sign. The power is the usual power given to a clerk of a court to sign a paper as clerk evidencing some action of the court and in so doing the clerk is acting merely as a scrivener. The clerk of the Court of Appeals certifies and signs all of the judgments of this court.

Under subdivision 2 the clerk is empowered to issue any citation, subpoena or other mandate to which a party is entitled as of course and he may sign as clerk and affix the seal of the court to any letters or mandates issued from this court. Since the only mandate the clerk is empowered to issue is one to which a party is entitled as of course and the only letters or mandates he may sign and seal as clerk are those otherwise properly issued by the court, none, other than a ministerial power, is here conferred.

Under subdivision 3 the clerk may certify in the manner prescribed by law a copy of any paper on file in the surrogate’s office. In other words he may compare the copy with the original and in writing assure the world that it is a true and complete copy of the original on file.

Under subdivision 4 the clerk may, when the surrogate is absent or busy, adjourn any matter to a definite time not beyond thirty days. If the surrogate is absent or busy, the matters arising would adjourn themselves from day to day to the inconvenience of all concerned. Power is herein granted to the clerk merely to convey to the parties an assurance that, without fear of default, they need not again attend until a day certain within the thirty days specified. This cannot be the exercise of sovereignty.

Under subdivision 5 the clerk is authorized to perform the functions of a notary public, but, outside Erie County and within the State, only if the Surrogate’s Court of Erie County has jurisdiction of the proceeding in which the oath is taken.

Under subdivision 6 the clerk may with the approval of the surrogate authorize one or more of the other clerics employed in the surrogate’s office to exercise any of the powers given to the clerk in this section. If the clerk is given no independent authority otherwise by this section, then, of course, the power to delegate his ministerial powers cannot make him an independent officer. The validating provision is merely the usual device to prevent reopenings etc., on technical grounds similar to those applying to notaries public.

Subdivision 7 confers no powers and subdivision 9 does not apply in Erie County.

Under subdivision 8 the clerk, deputy clerk and others designated by the surrogate are empowered to take proof of an uncontested will. In plain words, this means that the clerk or practically anyone else employed in the surrogate’s office may, where there is no contest, take the oath of the subscribing witnesses to a will when they sign and swear to a statement on a printed blank describing the execution of the will. The surrogate complies with section 144 of the Surrogate’s Court Act by designing a printed form with blanks to be filled in to elicit from the witnesses such information as he deems essential to prove a will where there is no objection or contest and no request to cross-examine the witnesses. The clerk does not become more of an independent officer whether he takes a few such oaths or many.

Under subdivision 10 the surrogate is empowered to direct the clerk and others to take under oath and report the testimony in any proceeding but without authority to pass on any of the issues. In Matter of Feit (278 App. Div. 944) and in Matter of Nowakowski (284 App. Div. 655), the Appellate Divisions have had occasion to examine the scope of the power conferred by this subdivision. In the latter case the Appellate Division said (pp. 656-657): “ The surrogate is a judicial officer of a constitutional court. (N. Y. Const., art. VI, § 13.) We know of no authority by which the surrogate may confer his judicial powers to hear, try and determine upon some appointed clerk in his office. * * * It is a basic duty of a judge, including surrogates, to see and hear all witnesses upon the trial of contested actions or proceedings. The abrogation of such duty is in conflict with the constitutional oath of office which each is required to take.”

If more than the ministerial powers to swear the witnesses and, a stenographer being present, to supervise the orderly questioning of witnesses by counsel in routine matters was intended, I think it is clear that the excess is unconstitutional.

Under subdivision 11 the surrogate is empowered to authorize the clerk and many others: (1) to sign the name of the surrogate to decrees in uncontested proceedings but only where the surrogate has decided the matter by a filed ivritten decision and (2) to sign the surrogate’s name to orders previously granted by the surrogate permitting safe-deposit boxes to be opened. Again, the clerk may put into writing what the court has authorized.

In summary, the statute says expressly that these enumerated powers are the powers of the surrogate and not independent powers. The clerk usually has no statutory duties of his own but is given some of the minor and clerical duties of the surrogate and none of these permit him the slightest exercise of sovereign power. Our courts have been able to keep abreast of the complexities of today’s society as well as they have because they have been able to delegate the routine, ministerial and mechanical portion of their work to subordinates — not as assistant judges but as clerks under the complete domination, direction and control of the courts. And in the instant case, that control and direction is not by way of judicial or administrative review but, rather, all of the power is in the surrogate and he directs and controls its exercise by his omnipresence. This is far different from review.

Next we should examine into the nonstatutory duties and powers of the clerk. In the present case the petitioner concededly directed the administrative processes of the everyday business of the surrogate’s office as the clerks of all courts do. The word clerk itself comes from cleric a minor religious functionary who was educated to read and write at a time when not many of the lay citizenry were literate. His earliest functions were to make written minutes of the pronouncements of the courts and to make the same available in the form and at the time directed by the court. Even today, these are the basic functions of the clerk of the Surrogate’s Court. In our populous cities, however, these basic and simple functions may be hidden by the embellishments of departmentalized staffs, under the immediate supervision and apparent administrative direction of the clerk. In this supervision the clerk does exercise as stated in the majority opinion, “ a high degree of initiative and independent judgment ” and “ broad authority and extensive discretion ” and there is ‘‘ heavy responsibility granted to him ’ ’ and ‘ ‘ high confidence reposed in him ”. I would remind you again that these are not statutory powers and duties and statutory powers are essential to the status of an independent officer. The only discretion which the clerk can possibly exercise depends solely upon the authority given him by the surrogate. But more important the clerk is not the court executive, the one who initiates and directs, but at most can do only that which is required of him by the surrogate. That subordinate status was intended is further borne out by the fact that prior to 1935 section 5 of the Surrogate’s Court Act declared flatly that the surrogate was liable for any act of the clerk. That section has been repealed but none of the attributes of the relationship and none of the powers and duties of the petitioner have been changed. In such a state of the statute I cannot understand how this court may now say that the Legislature constituted the clerk the alter ego of the surrogate, or if you prefer, an independent officer.

As stated in the majority opinion, the rule is firmly established that each case must be decided upon its own facts. Reference to our prior decisions construing section 22 of the Civil Service Law in order to compare what positions we have held to be independent offices with those we have held to be subordinate employees would serve no useful purpose because we are all agreed that all of these cases stand four square for the proposition that a person cannot be excluded from the protection of the statute as an independent officer unless he exercises, pursuant to statute and without the direction or control of a superior officer, some portion of the sovereign power. It has been demonstrated, I think, that petitioner did not.

Matter of Bergerman v. Byrnes (305 N. Y. 811) is cited and strongly relied upon as persuasive authority for the holding that petitioner is an independent officer. In that case we had before us a proceeding brought to review a determination of the municipal civil service commission holding the commissioner of records of the City of New York to be a “ principal executive officer ’ ’ within the meaning of subdivision 1 of section 13 of the Civil Service Law. There the Civil Service Commission had found from the statutory creation of the position and description of its duties that the office was one requiring independent judgment and discretion and if reasonable minds might differ in making that determination, the courts were precluded from upsetting it. The petitioner here may even be, in civil service language, a “ principal executive officer ” insofar as his non-statutory duties are concerned but, for the reasons stated above, it would not follow that he is an independent officer in the case before ns.

On this record we should not say that the status of this petitioner is that of an independent officer. The clear-cut distinction between the legal status of a subordinate employee and an independent officer is not a matter of expedience but represents the cumulative experience of many generations in dealing with government personnel. Fundamental as it is in our body politic that qualified veterans should not be whimsically removed from public service (Civil Service Law, § 22), it is equally important that the long-established concept of an independent officer should not be changed by judicial fiat in order to remove petitioner without charges and without a hearing.

The order appealed from should be affirmed, with costs, and the petitioner should be reinstated in Ms position and reimbursed for Ms back salary.

Conway, Ch. J., Fbobssel, Van Voorhis and Burke, JJ., concur with Fuld, J.; Dye, J., dissents in an opinion; Desmond, J., taking no part.

Order reversed, etc.

      . The section also empowers the surrogate of Erie County to appoint a deputy clerk and, in addition, provides that “ Each surrogate may appoint, and at pleasure remove, as many other clerks for his office, to be paid by the county, as the board of supervisors of his county authorize him so to appoint. * * * A surrogate may appoint, and at pleasure remove, as many additional clerks to be paid by him as he thinks proper.” In passing, it should be noted that, during petitioner’s term of office, he was in charge, and supervised the work, of a staff of some twenty-five employees.

      . When, read in conjunction with subdivision 1 of section 32, subdivision 9 of section 20 confers not only upon the surrogate, but upon the clerk too, power to complete as well as certify and sign all records and papers not completed by a predecessor of the sitting surrogate.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John De Feo, Appellant.
    Argued January 19, 1955;
    decided June 9, 1955.

      Harris B. Steinberg, Jesse Climenko, Martin I. Shelton and Richard A. Green for appellant.
    I. The mandate of commitment must be reversed because appellant’s constitutional rights were violated when he was compelled to appear before the Grand Jury and give testimony. (People v. Ferola, 215 N. Y. 285; People v. Gillette, 126 App. Div. 665; People v. Bermel, 71 Misc. 356; People v. Seaman, 174 Misc. 792; Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Taylor v. Forbes, 143 N. Y. 219; People v. Singer, 18 Abb. N. C. 96; People ex rel. Hummel v. Davy, 105 App. Div. 598; People v. Cahill, 193 N. Y. 232; People v. Reiss, 255 App. Div. 509.) II. Appellant never acquired complete immunity. (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Matter of Doyle, 257 N. Y. 244.) III. Appellant did not waive his privilege. (People v. Chlebowy, 191 Misc. 768; United States v. Monia, 317 U. S. 424; People ex rel. Hofsaes v. Warden of City Prison, 277 App. Div. 398, 302 N. Y. 403; People v. Breslin, 306 N. Y. 294.) IV. The immunity conferred on appellant at the fourth session — if any — did not relate hack to the first three sessions. (People v. Teal, 196 N. Y. 372; Brown v. United States, 83 F. 2d 383; Nueslein v. District of Columbia, 115 F. 2d 690; United States v. Setaro, 37 F. 2d 134; United States v. Mitchell, 274 F. 128; Malinski v. New York, 324 U. S. 401; People v. Leyra, 302 N. Y. 353, 345 U. S. 918, 345 U. S. 946; People v. Klein, 185 App. Div. 86.) V. Even if immunity was conferred on appellant, the defective mandate compels reversal. (People v. Diefendorf, 281 App. Div. 465, 306 N. Y. 818.) VI. The mandate of commitment must be reversed because the finding of contempt is predicated on alleged contumacious conduct with which appellant was not charged in the affidavit accompanying the order to show cause initiating the proceeding. (Matter of Landau, 230 App. Div. 308.) VII. The mandate of commitment is insufficient on its face because it does not set forth the " particular circumstances ” of the offense. (Matter of Steingut v. Imrie, 270 App. Div. 34.) VIII. Appellant was not willfully evasive or contumacious in his testimony before the Grand Jury. (Blim v. United States, 68 F. 2d 484; Matter of Parsons v. Steingut, 185 Misc. 323, 270 App. Div. 34; Matter of Finkel v. McCook, 247 App. Div. 57, 271 N. Y. 636; United States v. McGovern, 60 F. 2d 880; O’Connell v. United States, 40 F. 2d 201; United States v. Appel, 211 F. 495; Matter of Meckley, 50 F. Supp. 274, 137 F. 2d 310;
      Schleier v. United States, 72 F. 2d 414; Matter of Oliver, 333 U. S. 257; People ex rel. Falk v. Sheriff of N. Y. Co., 258 N. Y. 437; Matter of Spector v. Allen, 281 N. Y. 251; Rutherford v. Holmes, 5 Hun 317, 66 N. Y. 368.)

      Frank S. Hogan, District Attorney (Richard G. Denser and Leonard E. Reisman of counsel), for respondent.
    I. Appellant was willfully evasive and obstructive before the Grand Jury, and his conduct amounted to contumacious refusal to answer proper questions. (People ex rel. Falk v. Sheriff of N. Y. Co., 258 N. Y. 437; Matter of Steingut v. Imrie, 270 App. Div. 34; Ex parte Hudgings, 249 U. S. 378; Matter of Finkel v. McCook, 247 App. Div. 57, 271 N. Y. 636; United States v. Appel, 211 F. 495; Blim v. United States, 68 F. 2d 484; Schleier v. United States, 72 F. 2d 414; United States v. McGovern, 60 F. 2d 880, 287 U. S. 650; Matter of Meckley, 50 F. Supp. 274.) II. Appellant was properly called, sworn and interrogated before the Grand Jury, and no violation of his constitutional rights thereby occurred. (People v. Breslin, 306 N. Y. 294; Matter of Doyle, 257 N. Y. 244; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People ex rel. Hummel v. Davy, 105 App. Div. 598, 184 N. Y. 30; People v. Gillette, 126 App. Div. 665; People v. Bermel, 71 Misc. 356.) III. Immunity statutes were operative here and, accordingly, appellant was properly called, sworn and required to answer questions responsively. (People v. Sharp, 107 N. Y. 427; People v. Reiss, 255 App. Div. 509, 280 N. Y. 539; People ex rel. Hofsaes v. Warden of City Prison, 277 App. Div. 398, 302 N. Y. 403; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; People v. Leary, 282 App. Div. 476; Heike v. United States, 227 U. S. 131; Matter of Hood & Sons v. Du Mond, 297 N. Y. 209; Jongebloed v. Erie R. R. Co., 296 N. Y. 912.) IV. The mandate of commitment was sufficient and proper. (Matter of Rotwein [Goodman], 291 N. Y. 116.)
   Dye, J.

The defendant stands convicted of criminal contempt of court following a trial in the Court of General Sessions of the County of New York for having willfully refused to answer questions put to him by the Fourth Grand Jury, November, 1953, Term, New York County (Judiciary Law, § 750, subd. A, par. 5; Matter of Finkel v. McCook, 247 App. Div. 57, affd. 271 N. Y. 636).

On this appeal we are concerned only with the validity of the within proceeding which we may review even though not challenged at the trial (Matter of Hood & Sons v. Du Mond, 297 N. Y. 209, revd. on other grounds 336 U. S. 525; Jongebloed v. Erie R. R. Co., 296 N. Y. 912).

The Fourth Grand Jury, November, 1953, Term of the County of New York, undertook an investigation to determine whether the Cardinal Agency, Inc., a domestic corporation doing an insurance business in New York County, was splitting commissions received on policies from various companies with certain officials of labor unions and other persons in violation of section 380 of the Penal Law and sections 5 and 113 of the Insurance Law.

For the period under investigation, the books of the company showed that it had a gross income, viz. :

1951 — $ 75,000

1952 — 186,000

1953 — 295,000

and that for the same period unitemized cash withdrawals were made under the headings “ office expense ”, “ entertainment,” ‘ ‘ travel, ’ ’ and ‘ ‘ promotion ’ ’ aggregating, viz. :

1951 — $ 28,724.03

1952 — 107,282.33

1953 — 34,492.00 (five months).

The company books also showed that for the year 1952 the defendant personally spent at least $31,600,50 and for the five months of 1953, $34,492. The defendant, who at the time was the secretary and treasurer of the Cardinal Agency, Inc., and a one-half owner of its capital stock, was sworn and testified at hearings of the Grand Jury held November 24 and 25 and December 3 and 4, 1953. According to the Grand Jury minutes it does not appear that at or prior to the three sessions held before December 4th, the attention, of the defendant witness was in any way called to the purpose of the inquiry and informed of his rights as a prospective defendant in a criminal proceeding, that he claimed his privilege against self incrimination or that he had signed a waiver.

Concededly, it was not until the session held December 4,1953, that defendant was admonished and warned for the first time. He then claimed his privilege, whereupon the foreman of the Grand Jury granted him ‘ ‘ immunity for the crimes of conspiracy and for the crime of bribing labor officials ’ ’ and directed him to answer all questions on pain of prosecutions for perjury and possibly for criminal contempt ”. The defendant witness was then subjected to a lengthy and searching interrogation on matters relating to his personal use of company funds, including those he drew from the company and personally disbursed for “ entertainment ”, “ promotional purposes, travel and expense ”. To this line of inquiry the defendant flatly denied that any part of such money was used for kickbacks. On the other hand, he had difficulty in remembering the names of the persons entertained ”, the nature of the “ entertainment ”, the times and places where the “ entertainments had been held, of what the promotional purposes consisted, the expenses he had to meet, the times when or the places to which he had traveled, and in no instance could he give any breakdown for the money spent for any of such purposes even though only a few months had elapsed between the alleged spending and the interrogation. The Grand Jury finally excused him and, at the request of the assistant district attorney in charge, voted to cite him for criminal contempt. The within proceeding was then commenced.

The validity of the proceeding depends on whether the immunity conferred at the December 4th hearing was complete and coextensive with his constitutional protection against self incrimination as found by the court below or, as claimed by the defendant, was qualified and restricted by the limitations mentioned by the foreman of the Grand Jury. In other words, was the immunity granted as broad as the peril?

The answer depends on the scope and meaning attributable to section 2447 of the Penal Law (L. 1953, ch. 891, eff. September 1,1953). It provides in part:

“ § 2447. Witnesses’ immunity.
“1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein.
“ 2. ‘ Immunity ’ as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent, authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.
“ 3. ‘ Competent authority’ as used in this section means: • * *
(c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give answer or produce evidence; * * *
“ 4. Immunity shall not be conferred upon any person except in accordance with the provisions of this section. This statute was in effect when the defendant appeared before the Grand Jury.

By way of summary, in order to obtain the defined immunity, the witness must (1) claim his privilege, (2) be directed to answer, and (3) testify.

Prior to the enactment of section 2447, applicable immunity statutes (Penal Law, §§ 380-381 and 584) provided, in substance, that a person is not excused from testifying on the ground of privilege, but that he may not be criminally prosecuted “ for or on account of any transaction, matter or thing concerning which he may so testify ”. In that form a witness who had not signed a waiver, obtained immunity automatically if he gave self incriminating testimony (People ex rel. Coyle v. Truesdell, 259 App. Div. 282). The immunity thus obtained was coextensive with and as broad in protection as his constitutional privilege against self incrimination (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Matter of Doyle, 257 N. Y. 244) and this was so even though he did not claim his privilege before answering (People v. Sharp, 107 N. Y. 427; People v. Reiss, 255 App. Div. 509, affd. 280 N. Y. 539). It followed that if he claimed his privilege and refused to answer, and if such refusal was at all reasonable, he could not be compelled to answer under pain of contempt, and, if compelled, an indictment could not be based on the evidence obtained (Matter of Doyle, supra; People ex rel. Coyle v. Truesdell ,supra; People ex rel. Hummel v. Davy, 105 App. Div. 598, affd. 184 N. Y. 30).

An exception to such generality was available whenever an investigation into a public policy matter was not aimed at the witness, whenever he failed to claim his privilege (People v. Bermel, 71 Misc. 356), but this was a limited exception, for if it could reasonably be said that the investigation was aimed at the witness himself, even though he claimed no privilege, his status as a prospective defendant was deemed sufficient to confer immunity automatically (People v. Bermel, supra; People v. Gillette, 126 App. Div. 665; Counselman v. Hitchcock, 142 U. S. 547; People v. Singer, 18 Abb. N. C. 96) and as a prospective defendant he obtained complete immunity if his testimony was compelled (People v. Cahill, 193 N. Y. 232; People v. Reiss, supra).

Under the rule enunciated in the Gillette case (supra) and long followed, it was deemed a violation of constitutional rights to examine a witness concerning his own acts and prosecution for perjury or contempt arising from such testimony was prohibited. The court below, notwithstanding that on this record the defendant is unquestionably cast in the role of a prospective defendant, has ruled that the contempt proceeding was properly brought. In so ruling, it took the view that the limitations mentioned by the foreman of the Grand Jury at the December 4,1953, session did not serve to restrict or qualify the immunity conferred, since under section 2447 the foreman of the Grand Jury “ had no power to limit the immunity ”. Having reached the conclusion that the testimony given by the defendant witness at the December 4th session was available to support a charge of criminal contempt, it was an easy matter to also conclude that the testimony given at the three prior sessions whs also available, for the reason that the witness had not claimed his privilege in advance of testifying.

Section 2447 was thus being construed as providing a new procedure for dealing with a prospective defendant witness which supersedes the rule in People v. Gillette (supra), and other cases. Such disapproval was on the theory that application of the so-called Gillette rule ofttimes led to the consequence of an inadvertent grant of absolution to persons later found to be criminals; that in order to relieve the District Attorney of the burden of deciding in advance whether the testimony sought was more valuable than the right to prosecute, the statute was designed to shift the decision in the first instance to the witness by requiring him to claim his privilege in advance of testifying, if he was to obtain immunity. In other words, it is the responsibility of the witness to alert the prosecutor as to his option of abandoning the inquiry if he does not wish to grant immunity, or to override the privilege asserted and accord immunity in exchange for the testimony. However desirable and advantageous that may be in theory to the prosecutor in the conduct of an investigation into a public or private transaction, matter or thing, it is not at all consonant with constitutional protection accorded an individual when testimony is compelled as to his own acts or conduct.

Here the witness was being interrogated as to transactions and matters of such a' nature that the prosecutor must have known in advance that he was placing the witness in the role of a prospective defendant. Nonetheless, as we have pointed out, at the first three sessions the witness was not informed of the purpose of the inquiry, was not advised of his rights or warned of the consequences of his refusal to testify from which it may be inferred he intended to use the testimony elicited in a later prosecution.

While it is agreed that a grand jury is a competent authority to confer immunity (Penal Law, § 2447, subd. 3, par. [c]) and that the immunity conferred shall be complete in any criminal proceeding other than for perjury or contempt (subd. 2), it does not follow that the limitations on the immunity attempted to be granted to this witness, in exchange for incriminating testimony, was coextensive with and as broad as his constitutional privilege.

True it is that section 2447 is designed as a complete immunity statute, but the immunity it contemplates is not operative until conferred by the Grand Jury or some other duly authorized agency mentioned in the statute. Here the immunity attempted to be conferred by the Grand Jury was incomplete, with the result that defendant was being compelled to give testimony in violation of his fundamental right against self incrimination. That being so, no proceeding for contempt may be predicated thereon. To excuse implications flowing from the limitations mentioned by this Grand Jury on the ground that it lacked authority to limit the complete immunity contemplated by the statute is contrary to sound administration of our Criminal Law and could very well lead to serious excesses on the part of overzealous prosecutors. Such danger is well illustrated by this case. If such procedure is allowed to stand the People could use the testimony given by this defendant witness at the first three sessions in prosecuting some substantive crime other than conspiracy and bribery, since no waiver had been signed and no privilege claimed in advance. If a grand jury may place limitations as to the crimes immunized, even though the defendant witness claims his privilege, it means that the testimony thereafter compelled may be used for the twofold purpose of supporting charges of perjury or criminal contempt without losing any opportunities that might be developed for prosecution of a substantive crime.

We may not disregard the potential effect of such limitation. The defendant witness, a young layman, should not be condemned for accepting at its face value what the foreman of the Grand Jury told him. The immunity conferred was at best, a limited one — and, as it turned out later, an erroneous one. The defendant having relied on what he was told to his disadvantage should not be penalized. “ Punishment for a criminal contempt is a drastic remedy for willful wrong.” (Matter of Spector v. Allen, 281 N. Y. 251, 259; Rutherford v. Holmes, 5 Hun 317, affd. 66 N. Y. 368.)

The orders should be reversed and the citation for criminal contempt should be dismissed.

Conway, Ch. J., Desmond, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Orders reversed, etc.

      . The corporation had been organized in 1950, following the enactment of section 211 of the State Disability Benefits Law (Workmen’s Compensation Law, art. 9, added by L. 1949, eh. 600), for the primary purpose of writing insurance to cover labor union welfare benefits payable under that act.

      . His lapse of memory concerning these important particulars was occasioned by an alleged “ anxiety neurosis ” from which he was suffering due to “ tension, anxiety, fear and a feeling that something is going to happen ” as testified to by a psychiatrist.

      . Section 2447 was enacted at the Extraordinary Session of the Legislature upon the recommendation of the State Crime Commission, see Third Report, Mav 4, 1953, of the New York State Crime Commission (N, Y. Legis. Doc., 1953, No. 68).

      . Section 380 of the Penal Law, Bribery of Labor Representatives, had been amended by adding subdivision 3 (L. 1953, ohs. 675, 891); section 381 of the Penal Law has been rewritten and amended (L. 1953, ch. 891, § 5); section 584 of the Penal Law, Witnesses’ Immunity (conspiracy), has been amended (L. 1953, eh. 891, § 8) to provide that competent authority may confer immunity in accordance with the provisions of section 2447 of the Penal Law.


author: Van Voobhis, J. Desmond, J.

text:
    In the Matter of Warren Ross et al., Appellants, against Lewis A. Wilson, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued March 11, 1955;
    decided June 9, 1955.

      Alton B. Erickson and Philip A. Erickson for appellants.
    I. The board of education acted without statutory authority. (Matter of Wells, 64 N. Y. St. Dept. Rep. 227.) II. The acts of the board of education, which have been approved by the Commissioner of Education, violate the provisions of the New York Constitution. (Carpenter v. Wise, 92 Misc. 246, 174 App. Div. 926; Mount Sinai Hosp. v. Hyman, 92 App. Div. 270; People ex rel. Inebriates’ Home v. Comptroller of City of Brooklyn, 152 N. Y. 399.) III. The acts complained of were in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States. (Stuart v. Palmer, 74 N. Y. 183; Hollenbach v. Born, 238 N. Y. 34; Gilman v. Tucker, 128 N. Y. 190; Gardner v. Ginther, 232 App. Div. 296, 257 N. Y. 578.) IV. The courts are clothed with authority to review the determination of the Commissioner of Education. (Gilman v. Tucker, 128 N. Y. 190; Matter of Fabricius v. Graves, 254 App. Div. 19; Matter of O’Connor v. Emerson, 196 App. Div. 807, 232 N. Y. 561; Schnepel
      v. Board of Educ. of City of Rochester, 302 N. Y. 94; Altschul v. Ludwig, 216 N. Y. 459; Bull v. Stichman, 298 N. Y. 516.)

      Charles A. Brind, Jr., John P. Jehu, Elisabeth M. Eastman and George B. Farrington for Lewis A. Wilson, Commissioner of Education of the State of New York, respondent.
    I. Under section 310 of the Education Law, the decision of the Commissioner of Education in this case is both final and conclusive. (Matter of Cochran v. Levy, 175 Misc. 666, 263 App. Div. 921; Matter of Levitch v. Board of Educ. of City of N. Y., 243 N. Y. 373; Matter of Craig v. Board of Educ. of City of N. Y., 173 Misc. 969, 262 App. Div. 706; Matter of Board of Educ. of City of N. Y. v. Graves, 175 Misc. 205, 261 App. Div. 1115; People ex rel. Hill v. Collins, 34 How. Prac. 336; People ex rel. Light v. Skinner, 159 N. Y. 162; People ex rel. Board of Educ. of City of N. Y. v. Finley, 211 N. Y. 51; Barringer v. Powell, 230 N. Y. 37; Van Wormer v. Mayor of City of Albany, 15 Wend. 262; Osterhoudt v. Rigney, 98 N. Y. 222.) II. The construction of the statute by the court below is not only correct but is the only reasonable construction thereof. III. The decision of the commissioner does not raise any State or Federal constitutional question. (Barringer v. Powell, 230 N. Y. 37; Adriaansen v. Board of Educ., Wayne Co., 222 App. Div. 320.) IV. Interpretation of statute by the agency charged with the enforcement is entitled to great weight. (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Bullock v. Cooley, 225 N. Y. 566; People ex rel. Werner v. Prendergast, 206 N. Y. 405; Kings Co. Lighting Co. v. City of New York, 176 App. Div. 175, 221 N. Y. 500; Matter of McMaster v. Owens, 193 Misc. 284, 275 App. Div. 506; Board v. Hearst Publications, 322 U. S. 111; Rochester Tel. Corp. v. United States, 307 U. S. 125.)

      Robert G. Wright for Board of Education, respondent.
    I. Petitioners-appellants are bound by the decision of the Commissioner of Education. (Matter of Jacobson v. Board of Educ. of City of N. Y., 177 Misc. 809, 265 App. Div. 837, 265 App. Div. 935; Corbett v. Union Free School Dist., Town of Hempstead, 199 Misc. 930; Matter of O’Connor v. Emerson, 196 App. Div. 807, 232 N. Y. 561; Matter of McMaster v. Owens, 192 Misc. 687.) II. This sale was not a gift of public property. (Gray v. Barton, 55 N. Y. 68; Pennsylvania Whiskey Distributing Corp. v. Bruckman, 256 App. Div. 781, 282 N. Y. 665; Matter of Bergerman v.
      Murphy, 199 Misc. 1008, 278 App. Div. 388; Simson v. Parker, 190 N. Y. 19.) III. This sale did not deprive taxpayers of property without due process of law.
   Van Voobhis, J.

The controversy in this proceeding concerns the sale of the schoolhouse which served common school district No. 1 of the Towns of Ellicott and Gerry, in Chautauqua County, before it was superseded by a central school district. This district had been known as the Boss Mills District, In February, 1953, the board of education of the recently formed central school district called a special meeting of the qualified voters of the former common school district to vote upon whether to close the school and sell the school property. Such procedure is required by subdivision 6 of section 1804 of the Education Law, which also provides that if the common school district schoolhouse is sold, the net proceeds be apportioned among the taxpayers of the common school district.

At the special meeting of the common school district called by the board of education in 1953, four propositions were submitted: (1) Should the school of the former common school district be closed? (2) Should the school property be sold to Boss Mills Church of God for $2,000? (3) Should the property be sold to Boss Grange No. 305 for $3,000? (4) Should the property be sold by public auction to the highest bidder? The notice stated that proposition number 1 would be voted upon, and as many of the succeeding propositions as is necessary to dispose of the property ”. At the meeting, the proposal to close the school was carried. A motion was then made but declared out of order that the meeting should next ballot upon whether to sell the school property at public auction to the highest bidder. Then proposition number 2 was presented to the meeting to sell the school property to Boss Mills Church of God for $2,000. It was carried by a vote of 32 to 24. That ended the meeting.

The Commissioner of Education on appeal taken to him pursuant to section 310 of the Education Law sustained this action of the board of education. Thereupon this article 78 proceeding was instituted to review his determination, which was annulled by Special Term but reinstated by the Appellate Division upon the ground that decisions by the Commissioner of Education are final unless purely arbitrary (Matter of Levitch v. Board of Educ., 243 N. Y. 373), and that his decision could not thus be characterized in this instance inasmuch as subdivision 6 of section 1804 of the Education Law, pursuant to which this schoolhouse was sold, does not expressly state that it must be sold to the highest bidder upon the organization of a central school district. The wording of this section differs, it was pointed out, from section 1520 of the Education Law regulating sale of school property upon dissolution of a school district, in which event the Appellate Division said that it is required to be sold “ to the highest bidder at public auction ”.

No question was raised that Boss Grange was financially able to pay $3,000 in cash for the property. In his opinion upholding the action of the school district, the Commissioner of Education placed his decision upon the following ground: “ The type and character of the purchaser of such property after centralization is often a matter of vital import to the rural communities of this State. It is my opinion that the Legislature fully intended to give the voters of component districts a choice as to the type of person or organization whom they wished to have literally in their midst. If the sale were to be mandated to be made to the highest bidder, it may well be that a ‘ saloon ’, filling station or other enterprise undesirable to a specific community might be forced upon it. While I might not necessarily have come to the same conclusion as the majority of the voters in this case, I cannot, as a matter of law, find the exercise of the discretion vested by the statute in such voters to be so unreasonable as to set it aside.” The commissioner cited section 402 of the Education Law governing the sale of a school building ‘ ‘ Whenever the site of a schoolhouse shall have been changed,” in which event the qualified voters of the district shall have power to direct the sale of the former site and the buildings thereon “ at such price and upon such terms as they shall deem proper ”. The present situation does not involve a change in site of a school, but the closing of a former district school after the district has been merged into a central school district. Subdivision 6 of section 1804 governs that situation rather than section 402, nor is there greater occasion to apply section 402 than section 1520 which requires that the sale of property of a dissolved school district shall be at public auction. We think that it is not crucial, however, whether section 402 applies to the present situation, and shall decide the issue upon the assumption that section 402 at least supplies some guidance even if it is not directly controlling. By the same token, section 1502 governing the disposition of school property upon dissolution of a school district may also be regarded in interpreting the meaning of subdivision 6 of section 1804, although its requirement that sale shall be at public auction does not control the present transaction.

In fundamentals, these three sections are not so different as they have been made to sound. All of them contemplate disposal of school property in different contingencies for the best advantage of the school district or its taxpayers. Only the procedure for conducting the sale is different. Even section 1520, which the opinion of the Appellate Division states requires that upon dissolution of the district a school building shall be sold to the highest bidder, does not expressly state that it must be sold to the highest bidder. What that section says is that the property shall be sold “ at public auction ” which the Appellate Division interpreted as meaning that it must be sold to the highest bidder. Even in that event, the sale would not be required to be to the highest bidder if it were for a use that would constitute a public nuisance or be in violation of valid zoning or other ordinances or regulations.

By the same token whereby the Appellate Division indicated that the statutory requirement that a sale be conducted “ at public auction ’ ’ implies that the property must be struck down to the highest bidder, when subdivision 6 of section 1804 states that it shall be sold with the approval of a majority of the qualified electors voting at a common school district meeting without specifying the method of sale, or when section 402 provides that the sale shall be ‘ ‘ at such price and upon such terms as they shall deem proper ”, it means that the qualified electors shall use their own best judgment concerning what is the highest price obtainable rather than being required to go through the mechanical procedure of a public auction. In the conduct, of private affairs, the problem sometimes arises whether a better price can be obtained upon the sale of property at private sale or at auction. In the case of a public body, such as a school district, the object to be achieved is likewise to realize the best price for the property, although the judgment of the Legislature must be followed concerning whether that purpose is more likely to be accomplished by public auction. But if the Legislature does not require a schoolhouse to be sold at public auction, it by no means follows from that circumstance that the Legislature intended to authorize the public officials charged with the administration of school property, or even the majority of qualified electors voting at a school district meeting, to sell the property for a smaller amount than has been offered with due formality by a proper purchaser for a lawful use. Subdivision 6 of section 1804 vests broad discretion in a district meeting to determine whether an offer represents the best price obtainable for the property, and the decision of such a meeting will be upheld within wide limits even though it later develops that such a property could have been sold for more money. That is not the circumstance which is presented by the record upon this appeal. Here the higher offer to purchase the schoolhouse was before the district meeting while it undertook to approve a sale at a lower figure. It had been advertised in the notice of the meeting. Sections 402 and 1804 (subd. 6) of the Education Law contemplate that the electors may exercise their judgment and discretion in good faith concerning what is the best price at which a schoolhouse can be sold, but where a higher offer from a responsible bidder is already in their hands, there is not room for the exercise of discretion concerning it. The higher offer must be accepted if it is for a use that may be conducted pursuant to law. If, as was intimated by the Commissioner of Education, a former school site might be used for a filling station, bar and grill or other enterprise undesirable to a specific community, zoning ordinances or other lawful regulatory measures should be adopted. Broad powers are conferred respecting zoning and planning by the town- and village enabling acts (Town Law, art. 16; Village Law, art. VI-A). If the use to be made of a former schoolhouse would be detrimental to the local community, it would make no difference whether its discontinuance were due to a dissolution of the school district (Education Law, § 1520) or were caused by a change of site without the formation of a new district (§ 402) or, as in this instance, by the formation of a central school district (§ 1804, subd. 6). It is unlikely that the Legislature intended to vest the board of education and the district meeting with zoning or planning powers in one case and not in another, merely by prescribing a different procedure for conducting the sale. If a particular site is to be devoted to an objectionable use, such use should be prevented by proper zoning or other regulations regardless of whether the sale was at public auction or otherwise, and regardless of whether the location had been used or acquired for a school. The function of zoning and planning, however important in itself, has not been confided by the Legislature to the educational authorities, and neither the board of education of this central school district nor a majority of the voters at the meeting are empowered to depart from the performance of the functions with which they are charged by law in order to indulge in a different public activity. The Legislature did not confer upon them power of zoning and planning by providing that in certain instances a former schoolhouse shall be sold at public auction and in other instances by private negotiation subject to confirmation by a district meeting. Whichever procedure is prescribed by the Legislature for selling this publicly owned property, it was the duty of the board of trustees and of the district meeting to obtain the best price obtainable in their judgment for any lawful use of the premises. In this respect, their powers and duties are similar to those of trustees. Public officials are, it has been said, temporary trustees ” of public property (1 McQuillin on Municipal Corporations [3d ed.], § 1.106, p. 385), and “ It is mandatory upon trustees, with discretionary power of sale, to dispose of trust property upon the most beneficial terms which it is possible for them to secure ’’ (Kane v. Gerard Trust Co., 351 Pa. 191, 196). In Berner v. Equitable Office Bldg. Corp. (175 F. 2d 218, 221) the United States Court of Appeals said in an opinion by Judge Learned Hand : “ It is the duty of every fiduciary to get the best price he can upon the sale of any part of the trust property ”, This fiduciary obligation exists regardless of the method of sale. Neither is the board of education, in this instance, freed from such a fiduciary responsibility due to the circumstance that the price was approved by majority vote at the district meeting. Not only was there a substantial minority who objected, but also there were taxpayers who were not present at the meeting.

Such persons have minority rights which it is as important to democratic processes to protect as is rule by the majority. The majority present at this meeting who voted for the sale stood in somewhat similar fiduciary relationship to nonconsenting property owners as the majority stockholders did in Godley v. Crandall & Godley Co. (212 N. Y. 121) who were held to be subject to fiduciary obligations to the minority. Stated more precisely, the majority were limited by statute to utilizing the assets of the school district for educational purposes or to distributing them among the taxpayers. Any other disposition would be beyond the powers conferred upon a school district, and illegal — and would therefore infringe the rights of the minority.

The amount of money involved is small, but the principle is important; the offer which was rejected was to pay 50% more for this schoolkouse than the one which was accepted. Bogert, writing on Trusts and Trustees, says (§ 745): “ Whether the trustee should endeavor to sell by negotiation with possible buyers, or should put the property up at auction, depends upon the circumstances of the individual case. He should use the method which will, considering the place of sale and the type of property for sale, be apt to bring the best price.” In the present situation, the Legislature has determined that it was not necessary to sell this property at auction, although that procedure would have been permissible, but the latitude allowed in the method of sale was designed to enable these public fiduciaries to adopt the method which in their judgment would bring the best price, and it was their duty to sell at the best price which it brought, not deliberately to select and to favor a buyer at a lower price than was otherwise obtainable. In the same section of Bogert it is also said: “ A power to sell is not equivalent to a power to give away. If the trustee transfers for a merely nominal price or a wholly inadequate price, the sale may be set aside ”, citing Everett v. Texas Mexican Ry. Co. (67 Tex. 430). The learned author adds: “ The principal object of the sale is to obtain the maximum price. The trustee should do his best to secure competitive bidding and to surround the sale with such other factors as will tend to cause the property to sell to the greatest advantage. Just what plan and terms are the best fitted to produce this result in any given case depends on the peculiar characteristics of the property in question and the market conditions ”. Variance in the method of sale does not change the objective, which is to get the best price.

In a recent decision in Pennsylvania, these principles were expressly applied to the duties of public officials in the disposal of public property (Heilig Bros. Co. v. Kohler, 366 Pa. 72). It was there held that county commissioners who have power to sell county property, commit a breach of duty when they sell it without learning whether a higher offer earlier made by another is still in force, and that a sale to one who took with notice should be set aside. The existence of this duty does not depend upon the kind of procedure which is established by statute for conducting the sale. In section 802 of Dillon on Municipal Corporations it is said that “ Competitive offers or bids have no other object but to insure economy and exclude favoritism and corruption The same objects are to be served, even where greater latitude is allowed in the procedure to be followed. At section 811 Dillon states that where a discretion is allowed by statute in the case of municipal bidding, “ the body or officer awarding the contract cannot exercise the discretion entrusted arbitrarily, and without reason reject the lowest bid and accept a higher one.” These statements were made in regard to the letting of contracts for municipal improvements, so that the term “ highest ” bid should be substituted for “ lowest ” bid in the case of sale of public property. In a Missouri case this principle was applied, where it was contended that a discretion conferred by statute had been validly exercised in appointing a bank as depositary of school funds, although the successful bank had bid for them at a lower interest rate than another bank. Although the statute in question gave the board authority to exercise a reasonable discretion, the Missouri court interpreted it as intending to avoid “ all forms of * * * favoritism ” in the selection of banking institutions as depositaries and compelled an award to the highest bidder. (State ex rel. First Nat. Bank v. Bourne, 151 Mo. App. 104, 121). In another Missouri decision (State ex rel. Journal Print. Co. v. Dreyer, 183 Mo. App. 463), the award of a public printing contract to a higher bidder was set aside for similar reasons, although discretionary power existed under the statute to select the printer. To similar effect is Arensmeyer, Warnock, Zarndt, Inc., v. Wray (118 Misc. 619, per Rodenbeck, J.).

In Cook v. City of Racine (49 Wis. 243, 244-245), the court stated: “ The charter of the city of Racine does not require that contracts for building sidewalks shall be let to the lowest bidder, after advertising for proposals therefor. Hence such contracts may be made by private agreement between the city and the person contracting to build them. But, on general principles of law, such contracts must be fairly entered into at reasonable prices, and with due regard to the interests of the owners of lots chargeable with the cost of the improvement, and, if not so made, courts of equity will give relief to such owners on equitable principles.” In that case the contract was set aside as let at an unreasonably high price, even in the absence of evidence that another lower bid was available at the time.

The proceeds of sale of this schoolhouse are to be apportioned among the taxpayers of the common school district (Education Law, § 1804, subd. 6). Special Term stated: “ However lofty their motives may have been [the motives of the majority voters at the district meeting], it seems to me they lacked the power to impose their will upon the minority * * * whose property they were attempting to give away, in part at least, without their consent.” The direct result of what occurred is, in effect, to approve a contribution of $1,000 by the school district to the church. The Commissioner of Education entertained the view that full discretion ” is given by this statute to the majority of the voters, subject only to the prohibition against selling ’ for no consideration whatever, and subject further to review in a proper case where the consideration is so nominal as to constitute arbitrary and capricious action.” This view of the law is incorrect. Neither the district meeting nor the board of education could deliberately accept a lower offer for public property in order to favor one bidder, and thus promote objectives outside of the scope of the Education Law, however commendable such purposes may be. No resolution adopted by the qualified electors at a common school district meeting could authorize or approve the expenditure of school district money under the Education Law for noneducational purposes.

This contribution by a common school district to a particular church is not made in aid of any educational activity conducted by the church, but operates as an outright gift of public funds to a church for its general church purposes. Even if the facts of the case did not present the special situation of the use of public money for the support of a religious establishment (U. S. Const., 1st and 14th Amendts.; cf. N. Y. Const., art. XI, § 4), neither a common school district meeting (Education Law, § 2021) nor the district trustees (§ 1604) are empowered to expend the resources of the school district for other than educational objects. It is true that subdivision 7 of section 2021 empowers the voters to designate school grounds (in contradistinction to a schoolhouse) for playgrounds or for agricultural, athletic center or social center purposes — which is not broad enough to include church purposes — and that subdivision 9 empowers the voters to ‘ designate any former schoolhouse and appurtenances, or any part thereof, the title to which is vested in the board, as a public library building ’ ’, but the very circumstance that the powers of the electorate are limited in this manner accents the incapacity of a district meeting to make grants for noneducational purposes.

¡Section 414 of the Education Law, entitled “ Use of schoolhouse and grounds out of school hours,” in terms forbids such use “ if such meetings, entertainments and occasions are under the exclusive control, and the said proceeds are to be applied for the benefit of a society, association or organization of a religious sect or denomination ” (subd. 4). If a license for such an occasional use of a school building is prohibited, a fortiori the same principle would prevent the making, in effect, of a grant of one third of the immediately realizable value of this building in furtherance of such an object.

There is no power in either the board or the voters at a district meeting to pick and choose arbitrarily between purchasers, each desiring to use the property for lawful and proper purposes, or to transfer the funds or other property of the district in aid of one or to the disadvantage of another. In this instance, there is lack of power to use public funds to aid a church by discriminating against the grange. If that can be done, it would be equally legal to permit discrimination between different organizations as purchasers on the basis of their political or religious affiliations or even of their personal popularity. Such favoritism, whether well or ill founded, is not within the scope of the powers of a school district nor is it permitted by law. The record contains nothing to show that the bid of the grange was defective in any respect. Such a showing was necessary if it was to be rejected upon that ground. The principle is analogous to that which was applied in People ex rel. Coughlin v. Gleason (121 N. Y. 631, 634), which involved bids for public works, wherein it was said: But here it appears that the relator’s bid was next to the highest, and that there was no question or objection at any time that the lower bids were not formal and regular and made by responsible persons. It appears beyond doubt or cavil that the common council arbitrarily rejected the lower bids and accepted the relator’s.” (Italics supplied.) No defect in the bid by the grange nor question concerning the responsibility of the bidder has been raised upon this appeal.

For the reasons mentioned, we think that there was a total lack of power in the school district to accept an offer of $2,000 from the Church of God of Boss Mills and at the same time to reject an equally bona Me offer of $3,000 from the grange. Although we respect the desire of the commissioner to uphold, if possible, the action taken by the district meeting, since the meeting lacked power to do what it did, the commissioner’s confirmation was thus, in a legal sense, purely arbitrary, and thus reviewable in court. In this view of the case, it is not necessary to determine whether this transaction violated section 1 of article VIII of the New York State Constitution. The order appealed from should be reversed and the determinations of the Commissioner of Education and of the board of education approving the sale to the Church of God of Boss Mills should be annulled, with costs to appellants in this court and in the Appellate Division.

The order of the Appellate Division should be reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). This decision is, we believe, erroneous for at least three reasons:

First: It refuses to give effect to a majority vote, at a regularly called and conducted school district meeting, on a question as to which the applicable statutes (Education Law, § 402, subd. 1; § 1804, subd. 6) give, to such a majority, full power of choice.

Second: Although one of those statutes (§ 1804, subd. 6, supra) forbids respondent board selling the schoolhouse ‘ ‘ except with the approval of a majority of the qualified voters * * * present and voting ”, and the other statute (§ 402, subd. 1, supra) says that such majority “ shall have power * * * to direct the sale * * * at such price and upon such terms as they shall deem proper ’ ’, this ■ decision restrains respondent board from acting in accordance with the majority vote, and in effect mandates the board to accept a purchase offer which the majority rejected.

Third; Although, petitioners chose (they could have taken court proceedings instead) to appeal to respondent State Commissioner of Education and although his decision denying appeal is, by section 310 of the Education Law, “ final and conclusive, and not subject to question or review in any place or court whatever ”, this court gives no effect to the commissioner’s decision.

These things are undisputed: that the majority favored the sale to the church for $2,000, that there was no fraud or misconduct, that this was no “ gift ” but a sale at a price within range of the appraisal obtained by the board, that the applicable statutes (supra) contain no requirement of auction sale or acceptance of the highest bid, and that, in the absence of such a statute, there is no such requirement as to sales or purchases by public bodies (see 10 McQuillin on Municipal Corporations [3d ed.], § 28.44; Simson v. Parker, 190 N. Y. 19; Matter of Dovel Co. v. Village of Lynbrook, 213 App. Div. 570; Admiral Realty Co. v. City of New York, 206 N. Y. 110). That the Legislature, in another statute not here applicable (Education Law, § 1520) specifically required sale “ at public auction ” simply emphasizes the deliberate omission of such requirements from the statutes that apply here.

These statutes, which leave to a decision of a majority of the voters the choice as to price and terms of sale, are old ones, passed by a Legislature which has been concerned with problems of the common schools for many years. The legislators, desiring that the residents themselves, and not the board, should have final say as to whether and how, and for what price and terms, to sell closed schoolhouses, saw no necessity for protecting those residents from themselves by any requirement of auction or highest bid. The reasons why those residents might prefer a more desirable neighbor to a higher price were obvious to the Legislature, and should be obvious to anyone. Since each qualified person had one vote, there was nothing resembling a fiduciary relationship ” between them. When, in the traditional and thoroughly democratic fashion of school district meetings (see Education Law, §§ 416,1708, 2021, 2023, 2024), the residents chose the lower of two offers, without fraud or other illegality, the question was settled. The commissioner’s brief tells us that thousands of sales of “ old red schoolhouses ” have been carried out in that fashion. Why should we now interfere?

A sampling of rulings in other States shows that there is nothing unusual about selling an abandoned schoolhouse to someone other than the highest bidder (Messick, Discretionary-Powers of School Boards, p. 33; Yearbook of School Law [1937], p. 57 [1940], p. 72 [1953], p. 37).

Of course, the final and complete answer to all of appellants’ arguments is the State commissioner’s decision against appellants. Appellants could have gone to the courts in the first instance (Matter of O’Connor v. Emerson, 196 App. Div. 807, 810, affd. 232 N. Y. 561). But, when the commissioner, on their appeal to him, applied the statutes exactly as they read, appellants denounced his action as arbitrary ” (Matter of Levitch v. Board of Educ., 243 N. Y. 373). (The word “ arbitrary ”, meaning a baseless, irrational excuse of naked power, seems an inappropriate label for a determination concurred in by eight appellate court justices.) Of course, if a decision becomes arbitrary ” just because someone can be found to dispute it, every decision of the commissioner construing a statute (he has made thousands of such in the past one hundred thirty years) can be fought out, all over again, in the courts. But the statute says that his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever ” (Education Law, § 310, supra). Until now, the courts have consistently obeyed that very old statute and have refused such review (People ex rel. Hill v. Collins, 34 How. Prac. 336 [1867]; People ex rel. Light v. Skinner, 159 N. Y. 162, 166; People ex rel. Board of Educ. v. Finley, 211 N. Y. 51; Barringer v. Powell, 230 N. Y. 37; Matter of O’Connor v. Emerson, supra; Matter of Levitch v. Board of Educ., supra).

There is not, of course, any issue here as to Church and State ”, and neither the parties, nor the commissioner, nor the courts below, have discussed any such supposed issue.

The order of the Appellate Division should be affirmed, with costs.

Conway, Ch. J., Fuld and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., dissents in an opinion in which Dye and Froessel, JJ., concur.

Orders reversed, etc.