author: Wachtler, J.

text:
    In the Matter of Francis H. King et al., Respondents, v Hugh Carey, as Governor and Chief Executive Officer of the State of New York, et al., Appellants. New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO, et al., Respondents, v State of New York, et al., Appellants. Robert E. May, Respondent, v State of New York, Appellant. (And Two Other Actions.)
    (Claim No. 64501.)
    Argued November 8, 1982
    decided December 8, 1982

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for appellants in the first, second and third above-entitled matters.
    I. The time requirement for collecting strike penalties. was not enacted for the benefit of the striker. It was intended to ensure that a striker would be penalized. (Matter of Wilson v Board of Educ., 39 AD2d 965; Matter of Delea v Board of Educ., 86 Misc 2d 988, 53 AD2d 613,40 NY2d 808; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of Genovese v Anker, 64 AD2d 984; Matter of Sanford v Rockefeller, 35 NY2d 547.) II. The time requirements of section 210 (subd 2, par [g]) of the Civil Service Law are not a Statute of Limitations or bar to recovery of penalties due. They are directory only. (Matter of Wilson v Board of Educ., 39 AD2d 965; Rankin v Shanker, 23 NY2d 111; People v Ryan, 274 NY 149; Matter of Kiley v Kennedy, 16 Misc 2d 969; Matter of Klipp v New York State Civ. Serv. Comm., 42 Misc 2d 35, 22 AD2d 854, 15 NY2d 880; Matter of De Lury v Beame, 49 NY2d 155; Matter of Weymer v Board of Educ., 38 AD2d 895; People ex rel. Huff v Graves, 277 NY 115; Thomson v Harris, 88 Hun 478; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754.) III. The Comptroller may not be barred from correcting clerical errors and recouping unauthorized payments.

      Michael J. Smith for respondents in the first above-entitled matter.
    I. The deductions from petitioners’ wages, occurring in May of 1980 and thereafter, were violative of the provisions of section 210 (subd 2, par [g]) of the Civil Service Law. (Matter of Sanford v Rockefeller, 35 NY2d 547; Matter of Kiernan v Bronstein, 73 Misc 2d 629; Matter of De Lury v Beame, 49 NY2d 155; Matter of Wilson v Board of Educ., 39 AD2d 965, 32 NY2d 636; Tepper v Wyandanch Union Free School Dist., 107 Misc 2d 950; Matter of Committee of Interns & Residents v New York City Health & Hosps. Corp., 80 AD2d 807; Matter of Delea v Board of Educ., 86 Misc 2d 988, 53 AD2d 613, 40 NY2d 808.) II. Petitioners, and members of the proposed class, have standing to maintain the instant action. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; United States v SCRAP, 412 US 669; Matter of Abrams v New York City Tr. Auth., 48 AD2d 69; Matter of Winter v Board of Assessors of Nassau County, 63 Misc 2d 451; Matter of General Bldg. Contrs. of N. Y. State v Oneida County, 54 Misc 2d 260; Matter of Di Maggio v Lindsay, 53 Misc 2d 209; Policemen’s Benevolent Assn. of Westchester County v Board of Trustees of Vil. of Croton-on-Hudson, 21 AD2d 693; Matter of Doyle v City of Troy, 51 AD2d 845.)

      Richard R. Rowley and Ronald G. Dunn for respondents in the second above-entitled matter.
    I. Appellants failed to comply with the provisions of section 210 of the Civil Service Law when imposing payroll deductions on respondents after the statutory period as extended by the Federal courts and such deductions were consequently illegal. (Matter of De Lury v Beame, 49 NY2d 155; Matter of Sanford v Rockefeller, 35 NY2d 547; Boryszewski v Brydges, 37 NY2d 361; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Osborne v International Ry. Co., 226 NY 421; People v Mobil Oil Corp., 48 NY2d 192; Matter of Board of Educ. v Lewis, 67 Misc 2d 770; City School Dist. of City of New Rochelle v Zeluck, 63 Misc 2d 613; Loucks v Standard Oil Co. of N. Y., 224 NY 99.) II. The Legislature has defined the powers and duties of the Comptroller regarding the penal sanctions of the Taylor Law by directing that all payroll deductions be made not earlier than 30 nor later than 90 days following the date of determination of the chief executive officer. (Schampier v Office of Gen. Servs. of State of N. Y., 73 AD2d 1011, 52 NY2d 746; Matter of Theurer [Trustees of Columbia Univ. in City of N. Y. — Ross], 59 AD2d 196.)

      Claudia R. McKenna and Arnold W. Proskin for respondents in the third above-entitled matter.
    I. Section 210 (subd 2, par [g]) is a Statute of Limitations which bars fine deductions after 90 days. (Matter of Committee of Interns & Residents v New York City Health & Hosps. Corp., 55 NY2d 754; Matter of De Lury v Beame, 49 NY2d 155; Matter of St. Pierre v Board of Educ., 40 AD2d 71; Matter of Wilson v Board of Educ., 32 NY2d 636; Matter of Delea v Board of Educ., 86 Misc 2d 988; Tepper v Wyandanch Union Free School Dist., 107 Misc 2d 950; Matter of Genovese v Anker, 64 AD2d 984; Bradley v Buffalo, N. Y. & Erie R. R. Co., 34 NY2d 427; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371.) II. Clerical or ministerial error is legally insufficient to excuse defendant’s failure to take deductions within the statutory time period. (Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 74 AD2d 629.) III. The State does not have a right to a retroactive fine increase because of a retroactive pay increase. IV. Claimants have stated a cause of action upon which relief can be granted. (Matter of Committee of Interns & Residents v New York City Health & Hosps. Corp., 80 AD2d 807, 55 NY2d 754; Matter of Wilson v Board of Educ., 39 AD2d 965, 32 NY2d 636; Matter of De Lury v Beame, 49 NY2d 155; Matter of St. Pierre v Board of Educ., 40 AD2d 71; Matter of Delea v Board of Educ., 86 Misc 2d 988; Matter of Sanford v Rockefeller, 35 NY2d 547; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.)
   OPINION OF THE COURT

Wachtler, J.

The Taylor Law provides that once a determination has been made that a public employee has engaged in an illegal strike the public employer shall deduct a statutory penalty from the employee’s pay “[n]ot earlier than thirty nor later than ninety days following the date of such determination” (Civil Service Law, § 210, subd 2, par [g]). On these appeals the question is whether a portion of the penalty, which through miscalculation or other unintended omission was not deducted within the 90-day period, may nevertheless be deducted at some later date. In each case the trial court held that the 90-day limitation barred the State from making the additional deductions. The Appellate Division affirmed with two Justices dissenting. An appeal has now been taken to this court by the State in its capacity as the public employer.

In the spring of 1979 a number of State employees, most of whom were employed by the Department of Correctional Services, engaged in a strike against the State. On July 2, 1979 the State Director of Employee Relations formally declared that an illegal strike had occurred from April 18 to May 4. On July 20 the director issued a notice to each employee who had participated in the strike. The notice specified the dates on which the employee was found to have participated in the strike and informed the employee that pursuant to statute a penalty would be imposed and collected by wage deductions for each day of participation in the illegal strike.

On September 5, 1979 the Department of Correctional Services began the wage deductions. The employees’ union then commenced an action in Federal court challenging the constitutionality of the deductions. On September 8 the Federal court issued a temporary restraining order prohibiting the State from deducting more than two days’ pay from an employee’s wages during any biweekly pay period. On January 10, 1980 the Federal court dismissed the action and vacated its temporary restraining order.

It was apparently assumed by all parties that the payroll deductions had been completed within the permissive scope of the temporary restraining order by the time the Federal court vacated its stay. However, a subsequent and apparently routine audit by the Department of Audit and Control revealed a number of discrepancies involving insufficient deductions as well as excessive ones. To correct these errors the State made refunds of excessive deductions and, in approximately 300 instances of insufficient deductions, resumed the wage deductions.

The union and several individual employees then brought these actions and proceedings claiming that the additional deductions were illegal because they were not made within the 90 days prescribed in the statute (Civil Service Law, § 210, subd 2, par [g]). The State conceded that the 90-day period had expired but urged that the statute did not preclude the Comptroller from performing his constitutional and statutory duty of auditing the accounts and “correcting any errors discovered”. As noted the trial courts and the Appellate Division agreed with the employees holding that the cited section is a Statute of Limitations that bars the State from making the additional deductions. Two Appellate Division Justices dissented on the ground that the 90-day period “is directory rather than a Statute of Limitations” (84 AD2d, p 453).

On this appeal the State urges, as it did below, that the provision that the government collect the penalty “[n]ot earlier than thirty nor later than ninety days following the date of such determination” (Civil Service Law, § 210, subd 2, par [g]), should not be “literally” applied and that the State should be permitted an additional but unspecified period to deduct the penalty, at least when a State Comptroller’s audit had disclosed errors in the original wage deduction. Initially the State argues that the statute was designed to protect the public by ensuring that public employees who engage in illegal strikes are penalized and therefore should not serve to provide any protection for employees who have been found to have violated the law. For similar reasons the State contends that the public employees lack standing to complain that the State has failed to observe the statutory time restrictions in collecting the fine. The State also notes that the State Comptroller has the constitutional and statutory duty of auditing State accounts (NY Const, art V, §§ 1, 4; State Finance Law, §§ 8, 111) and, by implication, the power to correct errors disclosed during an audit. It is contended that this implied power to correct errors takes precedence over the time restrictions found in the statute at issue in this case.

We have previously held that public employees may rely on this statute (Civil Service Law, § 210, subd 2, par [g]) to preclude the government from making penalty deductions prior to the 30-day period specified in the law (Matter of Committee of Interns & Residents v New York City Health & Hosps. Corp., 55 NY2d 754). There is no reason why the employees should not also have standing to protest the State’s collection of the penalty beyond the 90-day limit also prescribed in the statute (cf. Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 10) particularly if, as they contend, it serves as a Statute of Limitations. The fact that they may have violated the Taylor Law does not mean that they should be forever subject to legal sanctions even beyond the time limitations the Legislature has seen fit to impose with respect to the collection of the penalty. The very purpose of a Statute of Limitations is to relieve those who have violated the law or the rights of others from continued civil or even criminal liability when the Legislature has determined that the passage of a fixed period of time has made further pursuit of the claim or penalty either unfair or ineffectual (see, e.g., Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429, 430; United States v Marion, 404 US 307, 322, 323; Model Penal Code, § 1.07, Comment [Tent Draft No. 5]). The constitutional and statutory provisions defining the State Comptroller’s general powers do not expressly or by implication suspend the operation of all statutory time limitations whenever the Comptroller seeks to correct an error detected during an audit (NY Const, art V, §§ 1, 4; State Finance Law, §§ 8, 111). Indeed the statute at issue expressly imposes the time requirements on “the chief fiscal officer of the government involved” (Civil Service Law, § 210, subd 2, par [g]), which in the case of the State refers to the Comptroller (State Finance Law, § 8, subd 1).

The primary question then is whether the statutory requirement that the Comptroller collect the penalty “[n]ot earlier than thirty nor later than ninety days” after the determination, limits the time within which he should act or, as the State contends, is merely directory. The State’s argument is based on the rule of statutory construction that “ ‘prescriptions in regard to the time, form and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity and dispatch in the conduct of public business’” ('Thomson v Harris, 88 Hun 478, 481; see, also, People ex rel. Huff v Graves, 277 NY 115; Matter of Grossman v Rankin, 43 NY2d 493, 501; McKinney’s Cons Laws of NY, Book 1, Statutes, § 172). However, we have also indicated that “the line between mandatory and directory statutes cannot be drawn with precision” (People v Karr, 240 NY 348, 351; People ex rel. Huff v Graves, supra, p 119). The inquiry involves a consideration of the statutory scheme and objectives to determine whether the requirement for which dispensation is sought by the government may be said to be an “unessential particular” (People ex rel. Lyon Co. v McDonough, 173 NY 181, 190; People ex rel. Huff v Graves, supra) or, on the other hand, relates to the essence and substance of the act to be performed and thus cannot be viewed as merely directory (McKinney’s Cons Laws of NY, Book 1, Statutes, § 172; see, also, Gonkjur Assoc. v Abrams, 57 NY2d 853).

The current penalty provisions of the Taylor Law are expressly designed to provide “more effective deterrents against strikes” by public employees (McKinney’s Session Laws of New York, 1969, p 2365). The statute establishes “a new procedure for the expeditious determination of participation in a strike and the imposition of penalties — well defined in advance so that a public employee will be fully aware of the individual consequences of his action and the certainty that penalties will be fairly imposed without unreasonable delay” (ibid,., pp 2366-2367). The new procedure in essence curtails the discretionary powers of public employers with respect to the disciplining of government employees who engage in strikes and instead imposes a series of mandatory procedures which not only require the public officials to act, but also require that they act with dispatch.

Thus under the statute the chief executive officer of the government involved is required to determine whether an illegal strike has occurred and, if a violation is found, the names of the striking employees and the dates of their participation (Civil Service Law, § 210, subd 2, par [d]). He must then notify the employees of the determination “forthwith” (Civil Service Law, § 210, subd 2, par [e]; see, also, Matter of De Lury v Beame, 49 NY2d 155, 160). Once this notice has been sent the chief fiscal officer of the government involved must deduct the statutory penalty from the employee’s wages within 30 to 90 days (Civil Service Law, § 210, subd 2, par [g]). That the Legislature considered the timing of the penalty to be of the utmost importance is underscored by the fact that the statute permits the imposition of the penalty without affording the employee a prior hearing (Matter of Sanford v Rockefeller, 35 NY2d 547, app dsmd 421 US 973). This departure from the general due process requirements has nevertheless been upheld because of the “overriding governmental and public interest in the deterrence of strikes by public employees as aided by the swiftly imposed penalty provisions” (Matter of Sanford v Rockefeller, supra, p 558).

In short, the time requirements imposed on public officials by the Taylor Law are not “unessential particulars”; they are an integral and central part of the statutory scheme which carries out the Legislature’s judgment that swift punishment is essential to deter further strikes by public employees. With respect to this statute then it is obvious that the Legislature considered time of the essence.

Finally, the State urges that a literal reading of the statute would make it “impossible” to recover the penalty in cases where the strike runs for more than 60 days, “unless a series of determinations were made”. It also argues that the literal interpretation would make it impossible for taxpayers to exercise their statutory right to seek enforcement of the penalty in those cases where the responsible officials have intentionally neglected to act within the period prescribed (Civil Service Law, § 213, subd [e]).

In this case, of course, the delay in collecting the penalty was due to error and was not the result of deliberate inaction on the part of the responsible officials. It appears that all of the striking employees were penalized in most cases to the full extent of the law and in the remainder, minor discrepancies in computation permitted all but a small portion of the penalty to be deducted. Indeed, neither of the problems posed by the State are presented by the facts of the cases now before us, and thus cannot be fully addressed at this time. As far as the issue now before us is concerned it is sufficient to note that the statute has not been literally interpreted or applied in cases where circumstances truly make it impossible to strictly comply with its terms (see, e.g., Matter of Wilson v Board of Educ., 39 AD2d 965, mod 32 NY2d 636; cf. Matter of De Lury v Beame, supra).

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

In each case: Order affirmed.

      . The lower courts also held that the affected employees could bring an article 78 proceeding or a suit in the Court of Claims and that class relief was appropriate. The State does not dispute those determinations on this appeal.

      . In this case the lower courts felt that this conclusion was implicit in our decision in Matter of De Lury v Beame (49 NY2d 155) in which the State argued that the 90-day limitation was directory and, in any event, had been met in that case. As the State notes, our agreement with the State on the latter point made it technically unnecessary to consider its other argument. On the other hand, it would have been not only unnecessary but fruitless for" this court to establish guidelines concerning the running of the period, if the time requirements did not actually serve as a Statute of Limitations.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    William M. Buckley, Respondent, v Robert B. Litman, Appellant.
    Argued November 10, 1982
    decided December 14, 1982

      POINTS OF COUNSEL

      Peter B. Lekki and Katherine R. Catanzarite for appellant.
    I. Both Special Term and the court below erred as a matter of law when they failed to take note of the crucial fact that Dr..Chalom was respondent’s employer when the allegedly libelous letter was written. (Stillman v Ford, 22 NY2d 48; Kenny v Cleary, 47 AD2d 531.) II. Both Special Term and the court below erred as a matter of law when they failed to take note of the crucial fact that Dr. Chalom supervised respondent while respondent was in appellant’s employ. (Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56.) III. Both Special Term and the court below erred as a matter of law when they determined that publication of appellant’s letter to Dr. Chalom, as respondent’s prospective employer, was not qualifiedly privileged. (Browne v Prudden-Winslow Co., 195 App Div 419; De Sapio v Kohlmeyer, 52 AD2d 780; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Green v Kinsella, 36 AD2d 677; Trails West v Wolff, 32 NY2d 207.) IV. Special Term erred as a matter of law when it determined that publication of appellant’s letter to Dr. Sipple was not absolutely privileged. (Toker v Pollak, 44 NY2d 211; Wiener v Weintraub, 22 NY2d 330; Bein v Lewis, 47 AD2d 538.) V. Special Term erred as a matter of law when it failed to determine that publication of appellant’s letter to Dr. Sipple was qualifiedly privileged. (Shapiro v Health Ins. Plan of Greater

      N. Y., 7 NY2d 56; Mercedes-Benz of North Amer. v Finberg, 58 AD2d 808.)

      Dennis C. Sbrega for respondent.
    I. The letter to Dr. Sipple was neither absolutely nor qualifiedly privileged because it was communicated to Dr. Chalom, an unprivileged recipient. (Bingham v Gaynor, 203 NY 27; Sunderlin v Bradstreet, 46 NY 188; McAulay v Maloff, 82 Misc 2d 447; Pecue v West, 233 NY 316; Goodyear Aluminum Prods. v State of New York, 21 Misc 2d 725,12 AD2d 692; Bounds v Mutual of Omaha Ins. Co., 37 AD2d 1008; Roberts v Pratt, 174 Misc 585; Toker v Pollak, 44 NY2d 211.) II. No qualified privilege exists with respect to the copy of the letter sent to Dr. Chalom because it was an unsolicited furnishing of libelous material to a prospective employer to whom no duty was owed. (Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Wiener v Weintraub, 22 NY2d 330; Bein v Lewis, 47 AD2d 538; De Sapio v Kohlmeyer, 52 AD2d 780; Browne v Prudden-Winslow Co., 195 App Div 419; Mercedes-Benz of North Amer. v Finberg, 58 AD2d 808; Commonwealth Motor Parts v Bank of Nova Scotia, 44 AD2d 375; Green v Kinsella, 36 AD2d 677; Kenny v Cleary, 47 AD2d 531; Stillman v Ford, 22 NY2d 48.) III. There is factual evidence of actual malice because of the nature of defendant’s pretrial testimony. (Ashcroft v Hammond, 197 NY 488; Hinrichs v Butts, 149 App Div 236; Kent v City of Buffalo, 36 AD2d 85, 29 NY2d 818.) IV. The scope of review of the Court of Appeals in this case is limited by constitutional provision to the question certified, and all facts must be presumed to have been determined in favor of plaintiff. (Mohrmann v Kob, 291 NY 181; Grannan v Westchester Racing Assn., 153 NY 449; Bowlby v McQuail, 240 NY 684; McMaster v Gould, 240 NY 379.)
   OPINION OF THE COURT

Jones, J.

The publication by a physician to appropriate personnel in the Education Department of an allegedly defamatory letter concerning that physician’s former assistant is subject at least to a qualified privilege. The publication of a carbon copy of the letter to a fellow physician with whom the author had a previous and continuing relationship giving rise to a common interest in the contents of the letter is likewise subject to a qualified privilege. Accordingly, an action in libel by the assistant does not lie against the physician-author based on either publication in the absence of proof of malice.

Defendant, a family practitioner, engaged plaintiff as a physician’s assistant on July 1,1978. While defendant was on vacation from his practice to recuperate from a debilitating disease, from August 1 to September 5, he arranged for Dr. Mark Chalom, a fellow family practitioner, to supervise plaintiff’s work. After defendant’s return from vacation, on September 9 plaintiff resigned from defendant’s employ. On September 20 plaintiff informed defendant that he was going to accept employment with Dr. Chalom, and on October 6 plaintiff and Dr. Chalom completed negotiations for the operation of a family practice clinic.

Meanwhile, in the third week of September defendant discovered that a large number of his patients’ confidential files were missing. During the course of plaintiff’s employment he had been allowed access to defendant’s patient files, and after his resignation had retained a key to one of defendant’s two offices. Investigation pointed to plaintiff as the person who had removed the files. When defendant sought to communicate with plaintiff the latter terminated a telephone call without uttering a word and otherwise took action which defendant believed was evasive.

Concluding that plaintiff possessed the missing files, on October 5, 1978 defendant addressed a letter to “Dr. William Sipple, Assistant Executive Secretary Physician’s Assistant Licensure Board”, at the address of the State Department of Education, registering a complaint against plaintiff. The letter charged, inter alia, that plaintiff had “stolen a large number of confidential clinical records without proper authorization”. Carbon copies of the letter were sent to Dr. Chalom and to the county Sheriff. The envelope addressed to the Sheriff was returned unopened, having been incorrectly addressed, and was never re-mailed. The present action for libel arises out of the publication of the letter to Dr. Sipple and the carbon copy to Dr. Chalom.

After conclusion of discovery proceedings, which included an examination of defendant before trial, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion; the Appellate Division, with one Justice dissenting, affirmed but granted defendant permission to appeal to our court. We now reverse the order of the Appellate Division, grant defendant’s motion for summary judgment, and dismiss the action.

The dispatch of the letter to Dr. Sipple was subject at a minimum to a qualified privilege, as a communication addressed to an official body charged with responsibility for consideration and processing of complaints of professional misconduct on the part of physician’s assistants (Toker v Pollak, 44 NY2d 211; cf. Wiener v Weintraub, 22 NY2d 330). We cannot agree with the majority at the Appellate Division that such a privilege never arose or was lost because a carbon copy of the letter was sent to Dr. Chalom. The two publications were separate and discrete; that they were of identical content did not alter that fact. In any event, we conclude, again differing with the majority at the Appellate Division, that the publication of the carbon copy of the letter to Dr. Chalom was likewise subject to a qualified privilege.

Dr. Chalom had been associated with defendant in the latter’s family practice during the period defendant was on vacation. During that time he had supervised plaintiff as a physician’s assistant in defendant’s office. Additionally, after their joint association with defendant, to defendant’s knowledge, plaintiff was seeking employment with Dr. Chalom as a physician’s assistant in the latter’s practice. In these circumstances there was such a common interest shared by defendant and Dr. Chalom as to warrant the extension of a qualified privilege to communications from defendant to Dr. Chalom relating to patient care and in particular to the handling of patient files maintained in the course of the practice of family medicine, notwithstanding that the communication here was unsolicited by Dr. Chalom (Restatement, Torts 2d, § 596, Comment d; Prosser, Torts [4th ed], § 115 [3], pp 789-791). The sending of a copy of defendant’s letter of October 5, 1978 was reasonably calculated to serve this interest.

It follows, therefore, with respect to both publications that no action for libel lies against defendant in the absence of proof of malice on his part. Our examination of the record supports the conclusion of the dissenter at the Appellate Division that there is, however, no tender of proof in admissible form in the record in this case sufficient on defendant’s motion for summary judgment to require a trial of that issue (cf. Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56).

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted, and the action dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, defendant’s motion for summary judgment granted and the action dismissed. Question certified answered in the affirmative.

       It does not appear that when this letter was sent there was a unit of the Education Department known as the “Physician’s Assistant Licensure Board”. It is unquestioned, however, that jurisdiction of registration and discipline of physician’s assistants was then vested in and exercised by the State Department of Education (Education Law, art 131-B). No contention is advanced before us that the letter addressed to Dr. Sipple was not intended for or not addressed to the regulatory body having oversight of the professional conduct of physician’s assistants.


author: Gabrielli, J.

text:
    In the Matter of Joseph W. Kelley, as District Attorney of Clinton County, Respondent, v Roy McGee, as County Treasurer of Clinton County, et al., Appellants. In the Matter of John R. King, as District Attorney of Dutchess County, Appellant, v M. Philip Amodeo, as Commissioner of Finance of Dutchess County, et al., Respondents. In the Matter of James R. Harvey, as District Attorney of Ontario County, Respondent, v Francis Finnick, as Ontario County Treasurer, et al., Appellants. (And Another Proceeding.)
    Argued November 11, 1982
    decided December 8, 1982

      POINTS OF COUNSEL

      Patrick R. McGill, County Attorney, for appellants in the first above-entitled proceeding.
    I. The District Attorney is a local not a State officer. (Westchester County Civ. Serv. Employees Assn. v Del Bello, 47 NY2d 886.) II. Section 183-a of the Judiciary Law is not a general law. (Johnson v Etkin, 279 NY 1; Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Osborn v Cohen, 272 NY 55; Matter of Henneberger, 155 NY 420.) III. Section 201 of the County Law controls in this matter. IV. Section 183-a of the Judiciary Law became unconstitutional in 1979.

      Carroll J. Mealey, Michael T. Wallender and James F. Downs for respondent in the first above-entitled matter.
    I. Section 7 of article XIII of the New York State Constitution does not apply to the office of a District Attorney. (Hanley v City of New York, 250 App Div 552, 275 NY 482; Finn v City of New York, 282 NY 153; Albert v City of New York, 250 App Div 555, 275 NY 484; Fisher v State of New York, 10 NY2d 60; Whitmore v State of New York, 55 AD2d 745; Ritter v State of New York, 283 App Div 833.) II. Section 7 of article XIII of the New York State Constitution does not preclude an award of increased salary to petitioner. III. Section 183-a of the Judiciary Law is constitutional. (Adler v Deegan, 251 NY 467; Wambat Realty Corp. v State of New York, 41 NY2d 490; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358.) IV. Section 183-a of the Judiciary Law is a valid general law. (Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Farrington v Pinckney, 1 NY2d 74.)

      Thomas D. Mahar, Jr., for appellant in the second above-entitled proceeding.
    I. Instant action and the relief sought therein is not time-barred by the Statute of Limitations. (State of New York v City of Binghamton, 72 AD2d 870; Matter of Shevlin v La Guardia, 166 Misc 473, 254 App Div 922, 279 NY 649; Matter of Powers v La Guardia, 181 Misc 624, 267 App Div 807; Matter of Ramsay v Lantry, 123 App Div 71; Matter of Donnellan v O'Dwyer, 189 Misc 121;
      Wakefield v Board of Educ., 192 Misc 639; People ex rel. O’Laughlin v Prendergast, 219 NY 377; Toscano v McGoldrick, 300 NY 156.) II. Laches is not a valid defense. (Matter of Devens v Gokey, 10 NY2d 898; Austin v Board of Higher Educ., 5 NY2d 430.) III. Section 7 of article XIII of the New York Constitution does not prevent an immediate increase in petitioner’s salary. (Fisher v State of New York, 13 AD2d 608, 10 NY2d 60; Ritter v State of New York, 283 App Div 883; Whitmore v State of New York, 55 AD2d 745; Corcoran v State of New York, 30 AD2d 991, 24 NY2d 922; Zimmerman v City of New York, 52 Misc 2d 797; Saunders v State of New York, 14 Misc 2d 881; Fonfa v State of New York, 88 Misc 2d 343; Murph v State of New York, 105 Misc 2d 684; Tunia v State of New York, 106 Misc 2d 601; Drake v City of Rochester, 96 Misc 2d 86.) IV. Section 183-a of the Judiciary Law does not violate article IX of the New York State Constitution. (Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of New York El. R. R. Co., 70 NY 327; Farrington v Pinckney, 1 NY2d 74; Kittinger v Buffalo Traction Co., 160 NY 377; People v Young, 46 AD2d 202; Matter of Mayor of City of N. Y., 246 NY 72; Adler v Deegan, 251 NY 467; City of Corning v Corning Police Dept. of Corning City Unit of Steuben County Ch., Civ. Serv. Employees Assn., 81 Misc 2d 294, 49 AD2d 689; Admiral Realty Co. v City of New York, 206 NY 110.) V. Petitioner did not waive his right to the salary increase mandated by sections 183-a and 221-d of the Judiciary Law. (Kehn v State of New York, 93 NY 291; Clark v State of New York, 142 NY 101; Grant v City of Rochester, 79 App Div 460, 175 NY 473; Legg v Brandt, 261 App Div 319; Fiorile v Goldman, 24 Misc 2d 944; People ex rel. Satterlee v Board of Police, 75 NY 38; Quayle v City of New York, 278 NY 19; Jones v City of Albany, 151 NY 223; Bertles v Nunan, 92 NY 152; Sprague v City of Rochester, 159 NY 20.) VI. Since section 183-a of the Judiciary Law is a general law, it cannot be superseded by local legislation. (Floyd v New York State Urban Dev. Corp., 33 NY2d 1; Matter of Cutler v Herman, 3 NY2d 334; Farrington v Pinckney, 1 NY2d 74; Stapleton v Pinckney, 293 NY 330; Matter of Corning v Donahue, 67 Misc 2d 276; Metallic

      Flowers v City of New York, 4 AD2d 292, 5 NY2d 246; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; De Milia v State of New York, 96 Misc 2d 77; Adler v Deegan, 251 NY 467; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606.) VII. Petitioner is entitled to the salary increase mandated by sections 221-d and 183-a of the Judiciary Law, retroactive to October 1, 1980. VIII. District Attorney King commenced a new term on January 1, 1979 and therefore is entitled to the raise which was effective October 1, 1978. (Matter of Bates v County of Steuben, 113 Misc 2d 68.)

      Stephen J. Wing, County Attorney for respondents in the second above-entitled proceeding.
    I. District Attorneys are prohibited from receiving salary increases during their term of office by section 7 of article XIII of the New York State Constitution. (Fellows v Mayor, 8 Hun 484; Hanley v City of New York, 250 App Div 552, 275 NY 482; Albert v City of New York, 250 App Div 555, 275 NY 484; New York Public Interest Research Group v Steingut, 40 NY2d 250; Adler v Deegan, 251 NY 467; People ex rel. Balcom v Mosher, 45 App Div 68, 163 NY 32; Finn v City of New York 282 NY 153; Westchester County Civ. Serv. Employees Assn. v Del Bello, 47 NY2d 886; Eberhard v City of New York, 163 Misc 370.) II. Appellant’s salary is a matter of the property, affairs or government of respondent, County of Dutchess, pursuant to article IX of the New York State Constitution. (Westchester County Civ. Serv. Employees Assn. v Del Bello, 70 AD2d 604-, 47 NY2d 806.) III. The application of section 183-a of the Judiciary Law is superseded by local legislation. (Farrington v Pinckney, 208 Misc 583, 1 NY2d 74.)

      Kevin F. McDonough for Joseph Joch and another, amici curiae in the second above-entitled proceeding.
    Section 183-a of the Judiciary Law does not violate section 7 of article XIII of the New York Constitution because a District Attorney is not a State officer. (Mulroy v Carey, 58 AD2d 207, 43 NY2d 819; Fisher v State of New York, 10 NY2d 60; Tunia v State of New York, 106 Misc 2d 601; Fonfa v State of New York, 88 Misc 2d 343; Whitmore v State of New York, 55 AD2d 745; Corcoran v State of New York, 30 AD2d 991, 24 NY2d 922; Murph v State of New

      York, 98 Misc 2d 324; Drake v City of Rochester, 96 Misc 2d 86; Zimmerman v City of New York, 52 Misc 2d 797; Saunders v State of New York, 14 Misc 2d 881.)

      John E. Murray, County Attorney, for Broome County, amicus curiae in the second above-entitled proceeding.
    I. District Attorney is a State officer. (Hanley v City of New York, 250 App Div 552, 275 NY 482; Cheatum v Wehle, 5 NY2d 585.) II. Assuming, arguendo, that a District Attorney is a local officer, constitutional home rule powers place the responsibility for his salary with the county. (Westchester County Civ. Serv. Employees Assn. v Del Bello, 70 AD2d 604; Matter of Resnick v County of Ulster, 44 NY2d 279.) III. Section 183-a of the Judiciary Law is not a general law. (Johnson v Etkin, 279 NY 1; Nydick v Suffolk County Legislature, 36 NY2d 951; Matter of Resnick v County of Ulster, 44 NY2d 279.) IV. Reasoning of the Fourth Department in the Harvey case is not supportable.

      Clavin M. Berger, James L. Kalteux, Kenneth F. Hartman and John K. Dalton for Edward V. Regan, State Comptroller, amicus curiae in the second above-entitled proceeding.
    I. An increase in the compensation of a District Attorney during a term of office is prohibited by section 7 of article XIII of the New Yórk State Constitution. (Pfingst v State of New York, 57 AD2d 163; Matter of McDonald v Goldstein, 191 Misc 863, 273 App Div 649; People v La Plante, 207 Misc 546; People v Fuller, 156 Misc 404; Spielman Motor Co. v Dodge, 295 US 89; Fellows v Mayor, 8 Hun 484; Hanley v City of New York, 250 App Div 552, 275 NY 482; Quin v Mayor of N. Y., 44 How Pr 266; Albert v City of New York, 250 App Div 555, 275 NY 484; Eberhard v City of New York, 163 Misc 370.) II. Sections 183-a and 221-d of the Judiciary Law do not authorize or require any increase in the salary of a District Attorney during a term of office.

      John W. Park, County Attorney, for appellants in the third above-entitled proceeding.
    I. The court below correctly held that the District Attorney is a local officer. (City of Amsterdam v Helsby, 37 NY2d 19.) II. Section 183-a of the Judiciary Law is not a general law. (Matter of Smithtown v Howell, 31 NY2d 365; Johnson v Etkin, 279 NY 1; Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; Sonmax, Inc. v City of New York,
      43 NY2d 253; Matter of Henneberger, 155 NY 420; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Osborn v Cohen, 272 NY 55.) III. The State concern doctrine does not apply to this case. (Adler v Deegan, 251 NY 467; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; City of Amsterdam v Helsby, 37 NY2d 19; Wambat Realty Corp. v State of New York, 41 NY2d 490; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of Resnick v County of Ulster, 44 NY2d 279.) IV. Section 201 of the County Law controls this case. V. Justice requires reversal. (Woods v Lancet, 303 NY 349.)

      Mark Dwyer and Robert M. Pitler for respondent in the third above-entitled proceeding.
    I. Section 183-a of the Judiciary Law, a general law relating to matters of State government, is a proper exercise of the Legislature’s authority, and requires that respondent’s salary be at least equal to that of the Ontario County Judge. (People ex rel. Simon v Bradley, 207 NY 592; Farrington v Pinckney, 1 NY2d 74; Johnson v Etkin, 279 NY 1; Sonmax, Inc. v City of New York, 43 NY2d 253; Nydick v Suffolk County Legislature, 81 Misc 2d 786, 47 AD2d 241, 36 NY2d 951; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of Freedman v Suffolk County Bd. of Supervisors, 29 AD2d 661, 25 NY2d 873; Matter of Mayor of N. Y. (Elm St.], 246 NY 72; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85.) II. Appellants have conceded that District Attorneys are not “State officers,” and thus that respondent is entitled to receive raises under section 183-a even if they took effect during his term of office. (Hanley v City of New York, 250 App Div 552, 275 NY 482; Matter of Castree v Slingerland, 139 Misc 632.)

      Robert Abrams, Attorney-General (Peter H. Schiff and Leslie Neustadt of counsel), in his statutory capacity under section 71 of the Executive Law in the third above-entitled proceeding.
    I. District Attorneys are not State officers within the meaning of section 7 of article XIII of the New York Constitution. (People v Mobil Oil Corp., 48 NY2d 192; Fisher v State of New York, 10 NY2d 60; Westchester County Civ. Serv. Employees Assn. v Del Bello, 47 NY2d 886; Anderson v Regan, 53 NY2d 356; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Hanley v City of

      New York, 250 App Div 552, 275 NY 482.) II. Section 183-a of the Judiciary Law is constitutional. (Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Cook v City of Binghamton, 48 NY2d 323; Matter of Van Berkel v Power, 16 NY2d 37; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486; Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042; City of Amsterdam v Helsby, 37 NY2d 19; Adler v Deegan, 251 NY 467; Wambat Realty Corp. v State of New York, 41 NY2d 490.)

      Jerrold L. Neugarten and Mark Dwyer for New York State District Attorneys Association, amicus curiae, in the third above-entitled proceeding.
    I. District Attorneys are not subject to the prohibition in section 7 of article XIII of the State Constitution on midterm changes in the salaries of “State officers.” (Hanley v City of New York, 250 App Div 552, 275 NY 482; Finn v City of New York, 282 NY 153; Albert v City of New York, 250 App Div 555, 275 NY 484; Burke v Kern, 287 NY 203; Matter of Miller v State of New York, 279 NY 74; Matter of O’Brien v Boyle, 219 NY 195; Westchester County Civ. Serv. Employees Assn. v Del Bello, 70 AD2d 604, 47 NY2d 886.)
   OPINION OF THE COURT

Gabrielli, J.

In these three appeals, the District Attorneys of the Counties of Clinton, Dutchess and Ontario seek compensation in accordance with sections 183-a and 221-d of the Judiciary Law. We hold that the requirement of section 183-a that full-time District Attorneys in certain counties be paid at the same salary level as County Court Judges in their counties is not in conflict with the home rule provisions of article IX of the New York State Constitution, nor does section 7 of article XIII bar a midterm increase in the salary of these local officers. Hence, District Attorneys in counties falling within section 183-a are entitled to be compensated in accordance with its provisions both prospectively and retroactively to the date at which the counties ceased paying salaries equivalent to those of the County Court Judges.

Relevant to all three appeals before us is a series of legislative enactments which gave rise to the present dispute. In 1969, the Legislature added subdivision 8 of section 700 of the County Law, requiring that the District Attorney in counties having a population greater than 100,000 devote full time to the duties of that office and prohibiting the District Attorney from otherwise engaging in the practice of law (L 1969, ch 415). The following year, subdivisions 9 and 10 were added to section 700, setting the minimum salary for District Attorneys in counties required to maintain the office as full time at $25,000 per annum and establishing a program of State aid pursuant to which those counties were paid $10,000 per annum to assist them in meeting the new salary requirement (L 1970, ch 733, § l).

In 1974, the Legislature amended subdivisions 8 and 10 to allow counties having a population greater than 40,000 and less than 100,000 to designate the office of District Attorney as a full-time position and to provide State aid to those counties opting to do so (L 1974, ch 1049, §§ 1, 2).

The minimum salary provision of subdivision 9 had been repealed in 1972 (L 1972, ch 946, § 1). At the same time, section 183-a was added to the Judiciary Law. This statute requires that the District Attorney of each county having a population greater than 500,000 receive an annual salary at least equivalent to that of a Justice of the State Supreme Court and that the District Attorney of each county having a population greater than 100,000 but less than 500,000 receive an annual salary at least equivalent to that of the County Court Judge in the county of the District Attorney’s election or appointment (L 1972, ch 946, § 3). When the Legislature amended subdivisions 8 and 10 of section 700 of the County Law to allow counties having a population greater than 40,000 but less than 100,000 to opt to designate the office of District Attorney as full time, it also amended section 183-a of the Judiciary Law to require that the District Attorney in such counties be paid at least the same annual salary as that received by County Court Judges in the District Attorney’s county (L 1974, ch 1049, § 3).

Pursuant to the State’s takeover of the judicial system, the Legislature, in 1979, provided for gradual increases in the salaries of County Court Judges throughout the State, retroactive to October 1, 1978 (L 1979, ch 55, § 2). These increases, set forth in section 221-d of the Judiciary Law, differ in amount for the various counties of the State.

The salaries of the full-time District Attorneys of Clinton, Dutchess and Ontario Counties, although subject to the requirement of section 183-a, have not been maintained at levels equivalent to those of County Court Judges receiving increases pursuant to the 1979 legislation. The District Attorneys of those counties commenced separate article 78 proceedings to require that their salaries be made commensurate with the salaries of the County Court Judges in their counties, retroactive to October 1,1978, the date on which the Judges began receiving increases.

The procedural background of the cases before us is as follows. In Matter of Harvey v Finnick, the Appellate Division, reversing Special Term and rejecting the constitutional challenges asserted by the county, granted the two petitions brought by the District Attorney. In Matter of Kelley v McGee, Special Term granted the District Attorney’s petition, relying upon the decision of the Appellate Division in Harvey, and a direct appeal by respondents pursuant to CPLR 5601 (subd [b], par 2) brings the case before this court. In Matter of King v Amodeo, Special Term granted the relief sought by the District Attorney, but the Appellate Division reversed and dismissed the petition, holding that the District Attorney is a State officer whose salary may not constitutionally be increased during his term of office (NY Const, art XIII, § 7).

Two State constitutional challenges are asserted to the requirement of section 183-a that District Attorneys’ salaries be maintained at a specific level. The first concerns the proscription contained in section 7 of article XIII of our State Constitution against midterm increases or decreases in the compensation of “the state officers named in this constitution”. This provision was first adopted in 1874 when it was added to the Constitution of 1846 and has been carried forward into successive Constitutions, with some changes in its language. Although the term “state officer” is nowhere defined in the Constitution, judicial interpretations of this provision have included within its scope Sheriffs (Hanley v City of New York, 260 App Div 552, affd 275 NY 482), registers (Albert v City of New York, 250 App Div 555, affd 275 NY 484), county clerks (Finn v City of New York, 282 NY 153) and, by logical extension of the rationale of these interpretations, District Attorneys (see Dodge v City of New York, 252 App Div 631, revd on other grounds 278 NY 25; 1924 Opns Atty Gen 119).

Thus, it is clear that when this provision was first adopted, the District Attorney was considered a State officer within the meaning of section 7 of article XIII, notwithstanding the fact that, for other purposes, the office was deemed local in nature (e.g., Fisher v State of New York, 10 NY2d 60 [District Attorney is not a State officer within the meaning of section 2 of the Public Officers Law so as to render the State liable for his tortious conduct]; Ritter v State of New York, 283 App Div 833 [same]; see Burke v Kern, 287 NY 203, 212 [Sheriff is a county officer, although also a State officer for some purposes]; Matter of Miller v State of New York, 279 NY 74, 77 [county register and employees of that office are not in State service for purposes of Workers’ Compensation Law]). We conclude, however, that more recent constitutional developments have operated to remove this office from its previous constitutional stature and that a District Attorney may no longer properly be considered a State officer.

Central to our determination that the office of District Attorney is to be treated as a local office is the significant change in the relationship between county and State governments brought about by the home rule provisions of our State Constitution. The Fearon Amendment, adopted and made a part of the Constitution in 1935, represents a major step in the direction of granting greater autonomy to county governments. Under this amendment, the Legislature was directed to provide alternative forms of county government. The Legislature carried out this direction by enactment of the Optional County Government Law in 1937, which authorized counties to either maintain existing forms of government or adopt one of four other alternative forms provided therein. In connection with these options, counties were empowered to adopt certain variations concerning the offices of District Attorney, county clerk and Sheriff (Optional County Government Law, §§ 401, 403, 407, 408, 501, 503, 504). The Alternative County Government Law, enacted in 1952 to supersede the former law, provided even greater power in county governments over these essentially county offices, including the power to designate them as elective or appointive (Alternative County Government Law, § 58).

The Fearon Amendment was followed by the adoption of successive constitutional provisions which granted increasingly greater autonomy to local governments. The comprehensive home rule amendments of 1963 (set forth as article IX of the Constitution) evince a recognition that essentially local problems should be dealt with locally and that effective local self-government is the desired objective. Article IX contains a “Bill of rights for local governments” (NY Const, art IX, § 1), which, in addition to setting forth broad grants of general power to such bodies, specifically provides as follows: “Counties, other than those wholly included within a city, shall be empowered by general law * * * to adopt, amend or repeal alternative forms of county government provided by the legislature or to prepare, adopt, amend or repeal alternative forms of their own. Any such form of government or any amendment thereof, by act of the legislature or by local law, may transfer one or more functions or duties of the county * * * to each other * * * or may abolish one or more offices, departments, agencies or units of government” (NY Const, art IX, § 1, subd [h], par [l]).

The history of the constitutional home rule provisions demonstrates the evolution of county governments from their previous status as administrative arms of the State to their present status as more autonomous units of local government. The power granted to counties over the nature and functions of its local offices is a significant one, extending even to the power to abolish those offices under certain circumstances Westchester County Civ. Serv. Employees Assn. v Del Bello, 47 NY2d 886, revg on dissenting opn below 70 AD2d 604). In determining whether the office of District Attorney is a State or local office, the effect of such changes upon the status of county governments may not be ignored. Indeed, we believe that under the present constitutional framework, the characterization of a District Attorney as a State officer is conceptually incompatible with the broad authority afforded counties over their local offices by the home rule provisions. Accordingly, we conclude that a District Attorney should no longer be considered a “state officer” within the meaning of section 7 of article XIII of the Constitution.

This does not end our inquiry, however, for the counties also challenge the Legislature’s authority to set the salaries of District Attorneys, arguing that such legislation impinges upon the broad powers of home rule afforded local governing bodies. Article IX of the Constitution, as noted above, grants to local governments significant power and authority to act with respect to local matters. There are limitations upon those powers, however, and substantial authority is reserved to the Legislature to act in matters touching upon local concerns. Thus, the Legislature has the “power to act in relation to the property, affairs or government of any local government only by general law,” although it may also so act by special law under limited circumstances (NY Const, art IX, § 2, subd [b], par [2]). However, nothing in article IX is intended to impair the power of the Legislature to act in relation to “[m]atters other than the property, affairs or government of a local government” (NY Const, art IX, § 3, subd [a], par [3]).

The precise question before us, then, is whether the subject matter of section 183-a falls within the competence of the State Legislature by virtue of the powers reserved to it under article IX. The statute effects a classification of counties into four groups, based upon their population; (1) counties having a population greater than 500,000, District Attorneys of which must be paid an annual salary equivalent to that received by State Supreme Court Justices; (2) counties having a population greater than 100,000 but less than 500,000, District Attorneys of which must be paid at the same level as County Court Judges in their counties; (3) counties having a population greater than 40,000 -but less than 100,000 that have opted to designate the District Attorney’s office full time,' District Attorneys of which must also be paid at the salary level of County Court Judges; and (4) by implication, counties having a population less than 40,000, in which the payment of the District Attorney’s salary is unaffected by the statute. The counties argue that the statute is invalid as a “special law”, which is defined in the Constitution as a “law which in terms and effect applies to one or more, but not all, counties” (NY Const, art IX, § 3, subd [d], par [4]). This argument, however, misperceives the nature of the authority under which the Legislature has acted.

It is well established that the home rule provisions of article IX do not operate to restrict the Legislature in acting upon matters of State concern. In questioning whether a challenged statute involves a matter other than the property, affairs or government of a municipality, this court has consistently analyzed the issue from the standpoint of whether the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation. Sufficient State-wide importance has been found in State legislation the subject matter of which concerned the public health and safety of the people of the City of New York (Adler v Deegan, 251 NY 467 [upholding the Multiple Dwelling Law against a claim that it violated the city home rule provisions of the Constitution]), payment by the City of New York of its mandatory retirement or pension liabilities (Bugeja v City of New York, 24 AD2d 151, affd 17 NY2d 606), the protection of the resources of the Adirondack Park region (Wambat Realty Corp. v State of New York, 41 NY2d 490), the preservation of financially troubled cultural institutions and museums of the State (Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358), and the residential mobility of members of the civil service (Uniformed Firefighters Assn. v City of New York, 50 NY2d 85). Clearly arising from these cases is the principle that in areas of State-wide significance, the State may freely legislate, notwithstanding the fact that the concern of the State may also touch upon local matters (Wambat Realty Corp. v State of New York, supra, at p 494). Thus, such State legislation which also affects local concerns does not implicate local governmental home rule powers (Uniformed Firefighters Assn. v City of New York, supra, at p 90).

Analysis of these cases leads us ineluctably to the conclusion that the subject matter of section 183-a is a proper concern of the State. Our determination herein that the constitutional role of county government has evolved to a point at which its officers may no longer be deemed State officers for purposes of the Constitution’s ban on midterm salary increases establishes that a local concern is implicated in section 183-a. It does not necessarily follow from that determination, however, that the State does not have a sufficiently important interest in the salaries which District Attorneys are paid to allow it to legislate on this subject matter. It is obvious that the office of District Attorney, having as its responsibility the enforcement, on a local level, of the penal laws of this State and the representation of the people of this State in criminal matters arising within the county, is a matter of concern to the State (cf. the purely local concerns presented in such cases as Matter of Osborn v Cohen, 272 NY 55 [term “property, affairs or government” includes matters relating to organization and control of fire department]; Matter of Resnick v County of Ulster, 44 NY2d 279 [method of filling vacancies in the offices of county legislator is local concern]). As the Appellate Division noted in Matter of Harvey v Finnick (88 AD2d 40, 43), the purpose of section 183-a is “to maintain the security and independence of District Attorneys, and to assure that persons of high standing and integrity remain in their position. The Legislature recognized that it was not equitable to require full-time District Attorneys to forego private practice while at the same time having their salaries frozen at inadequate levels. By providing minimum salaries equivalent to Judges of the County Court, the office of District Attorney would attract the best available attorneys, and diminish the exodus of District Attorneys to the County Court Bench” (citations omitted). These objectives behind the statute demonstrate the strength of the State’s interest in maintaining the salaries of District Attorneys at an acceptable level.

Once a statute is found to involve an appropriate level of State interest, the fact that it effects a classification among the local governments it regulates does not render the enactment invalid, so long as that classification is reasonable and related to the State’s purpose (Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., supra; Uniformed Firefighters Assn. v City of New York, supra). Classifications based upon the population of members of the class have long been held reasonable (e.g., Farrington v Pinckney, 1 NY2d 74). The Legislature’s choice to impose minimum salary requirements for District Attorneys upon counties depending upon their size comports with logic and common sense. It is entirely reasonable to assume that the greater the population in a county, the greater will be its need for a full-time District Attorney as well as its ability to pay that officer an adequate salary.

Thus, we conclude that section 183-a of the Judiciary Law suffers no defect under the Constitution of this State. Accordingly, in Matter of Kelley v McGee, the judgment of Supreme Court, Clinton County, should be affirmed, with costs. In Matter of King v Amodeo, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Dutchess County, should be reinstated. In Matter of Harvey v Finnick, the orders of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

In Matter of Kelley v McGee: Judgment affirmed, with costs.

In Matter of King v Amodeo: Order reversed, with costs, and judgment of Supreme Court, Dutchess County, reinstated.

In Matter of Harvey v Finnick: Orders affirmed, with costs.

      . The Counties of New York, Bronx, Kings, Queens and Richmond were excepted from the minimum salary requirement set by subdivision 9, but these counties were included in the program of State aid.

      . Subdivision 8 was amended in 1978 to include Essex County among those counties required to have a full-time District Attorney (L 1978, ch 419, § 1). Subdivision 8 now reads as follows: “The district attorney of a county having a population of more than one hundred thousand according to the last federal census and the district attorney of Essex county and any county having a population of more than forty thousand but less than one hundred thousand according to the last federal census, the board of supervisors of which has designated such office as a full-time position, shall give his whole time to his duties and shall not engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his duties as district attorney.” Subdivision 10 provides: “There is hereby established a program of state aid to all counties having a population of more than one hundred thousand according to the last federal census, to any county, the board of supervisors of which has designated the office of district attorney as a full-time position pursuant to subdivision eight of this section and to the city of New York for the salaries of district attorneys of such counties and the counties within such city at the rate of ten thousand dollars per annum. No such state aid shall be paid with respect to any district attorney who has not complied with subdivision eight of this section.”

      . The Counties of New York, Bronx, Kings, Queens and Richmond were excepted from this requirement.

      . The County of Richmond was excepted from this requirement.

      . Section 183-a of the Judiciary Law now reads as follows: “Notwithstanding any other provision of law, the district attorney of each county having a population of more than five hundred thousand according to the last federal census, exclusive of the counties of New York, Bronx, Kings, Queens and Richmond, shall receive an annual salary equivalent to that of a justice of the state supreme court together with such additional compensation as the legislative body of such county may provide by local law. Further, that the district attorney of each county having a population of more than one hundred thousand and less than five hundred thousand according to the last federal census, exclusive of the county of Richmond, and the district attorney of any county, the board of supervisors of which has designated such office as a full-time position pursuant to subdivision eight of section seven hundred of the county law, shall receive an annual salary equivalent to that of county judge in the county in which the district attorney is elected or appointed, together with such additional compensation as the legislative body of such county may provide by local law.”

      . 1980 legislation provides for further increases in the salaries of State-paid Judges and Justices of the Unified Court System (L 1980, ch 881, § 14).

      . Clinton County designated the office of District Attorney a full-time position by resolution dated and adopted June 11, 1975. Ontario County opted to do the same by Local Law No. 2 of 1975. Dutchess County having a population greater than 100,000 and less than 500,000, is required by the terms of the County Law to maintain a full-time District Attorney.

      . The District Attorneys of Clinton and Ontario Counties are still receiving a salary lower than that of County Court Judges in their respective counties. The Dutchess County District Attorney, however, since the commencement of his most recent term of office (January 1, 1982), now receives a salary commensurate with that of the County Court Judges of his county. He therefore seeks only past salary allegedly due him "by reason of the county’s failure to comply with section 183-a.

      . Section 7 of article XIII provides, in full, as follows: “Bach of the state officers named in this constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation.”

      . The Optional County Government Law was largely repealed and superseded by the Alternative County Government Law effective in 1954 (L 1952, ch 834).

      . Also in existence at this time was article XIII (§ 13, subd [a]), which provided that: “Except in counties in the City of New York and except as authorized in section one of article nine of this constitution [quoted in text above], sheriffs, clerks of counties and district attorneys * * * shall be chosen by the electors of the respective counties once in every three years”. This provision reinforces the broad grant of authority in counties over their local offices. A 1972 amendment removed the office of District Attorney from the exception clause and the subdivision currently provides that District Attorneys are to be chosen by the electors once in every three or four years as the Legislature shall direct. It is argued that the purpose of this amendment was merely to provide greater flexibility in designating the term of office of District Attorneys. Whatever may have been its purpose, however, we do not read it to restrict the grant of authority contained in section 1 of article IX.

      . This conclusion is further buttressed by the language of article XIII (§ 13, subd [c]) of the Constitution, which states that the City of New York may abolish the “office of any county officer within the city other than judges, clerks of counties and district attorneys”. It is certainly worthy of note that the only specific reference in the Constitution to the nature of the office of District Attorney as State or local is phrased in terms implicitly recognizing its character as local, or county, in nature.

      . The converse, a “general law” is defined as one “which in terms and effect applies alike to all counties” (NY Const, art IX, § 3, subd [d],- par [1]).

      .  We recognize that article IX (§ 2, subd [cl, par [ii], cl [1]) specifically grants power to local governments over the compensation of their officers. However, this power is limited to the enactment of local laws which are not inconsistent with any general law relating to that subject (City of Amsterdam v Helsby, 37 NY2d 19). Inasmuch as we conclude that section 183-a is a valid State enactment on this subject, it may not be superseded by local legislation in conflict with it.

      .  Although section 201 of the County Law places the authority to fix the salaries of officers paid from county funds in the board of supervisors, it must be deemed impliedly repealed by the later-enacted section 183-a of the Judiciary Law, only to the extent that the two laws are in conflict.