The People of the State of New York, Appellant, v. George W. Miller, Respondent

The People of the State of New York, Appellant, v. George W. Miller, Respondent. (Argued February 26, 1874; decided May 26, 1874.) Under the provisions of the supply hill of 1870 (chap. 492, Laws of 1870), requiring companies, transferring securities on deposit with the superintendent of the insurance department, to pay to him one-fifth of one per cent on the amount transferred, the percentage was designed as a compensation to the superintendent for his services in effecting the transfer, and he was entitled to the same. (Grover, Forger and Andrews, JJ., dissenting.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order reversing an order of Special Term overruling a demurrer to the complaint and sustaining the demurrer. The complaint alleged in substance, that: By chapter 492 of the Laws of 1870 (the supply bill), it is, among other things, enacted as follows: “For the insurance department, for compensation of clerks, furniture,’ books, printing, stationery and other incidental expenditures, §30,000, and $7,000 for expenses of moving offices and fitting same up, and to provide necessary office accommodation for the department in Sew York. The aforesaid sums to be paid to the treasury by the insurance companies, pursuant to chapter 366 of the Laws of 1869, and amendments thereto-; and hereafter, on transfer of securities, one-fifth of one per cent on the amount transferred to be paid by the- company making the transfer to the superintendent of the insurance department;” that the defendant was superintendent of the insurance department from May 1,1870,. to-May 1,1872, and as such received, under the statute aforesaid, one-fifth of one per cent, amounting to $5,070-.80-; that it was his- duty to have paid this to the State treasury, but that he has not done so. And this sum plaintiffs sought to recover. Defendant demurred upon the ground that the complaint did not state facts sufficient to constitute- a cause of action. Daniel Pratt, attorney-general, for the appellants. It was not designed, by the act of 1870, that the fees chargeable for making transfers of securities, should be retained by the superintendent. (Laws 1859, chap. 366, § 7; Laws 1861, chap. 326; Laws 1868, chap. 732, p. 1649; Laws 1862, chap. 300, § 15; Laws 1865, chap. 694; Laws 1872, p. 1239; Laws 1872, p. 1002; Laws 1853, chap. 466, § 27.) George . W,. Miller, respondent, in person. The superintendent was entitled to retain the fees chargeable for making transfers of securities. (Laws 1859, chap. 366, § 7, p. 882; Laws 1853; chap. 462, as amended; Laws 1862, chap. 300, §§ 15, 17; Laws 1864, chap. 412, § 7; 1 R S., 187, § 15; 188, § 3; 190; id., 172, §2; 1 Edm. Stat., 108; 1 R. S., 179; 3 id., 649, § 57; 2 id:, 647, §- 41; 2 Edm. Stat., 66, § 71; Laws 1847, chap.499; Laws 1871, chap. 709, § 7.) [MAJORITY — Johnson, J.] Johnson, J. The opinion of the court at General Term is a satisfactory discussion of the question involved in the case, and in its conclusion and the grounds assigned therefor we concur. The controlling consideration is that there are plain words directing these moneys to be paid to the superintendent, and that there is no requirement that he should pay them into the treasury. The clause of the statute in which the provision is contained points the meaning of the direction that this percentage should be paid to the superintendent, by the other provision that certain other sums are to be paid into the treasury. The service for which this percentage was to be paid to the superintendent he might not be required to render at all, it being dependent on the desire of the companies to change their securities; and the compensation would vary with the amount of service required. Considered as a source of revenue to the State it would always have been utterly uncertain in amount; while as a compensation for uncertain and otherwise uncompensated service it would be exactly graduated by the amount of service actually performed. Throughout the acts in respect to the insurance department, when moneys received are to be paid into the treasury, it is so specifically provided. The solitary exception is in the act chapter 694 of the Laws of 1865, which in substance provides that insurance companies of other States doing business in this, shall be subjected to the same fines, rules, license fees and charges, as are imposed on our companies doing business in such other States respectively. The general scheme and object of that law precludes the idea that its provisions could have been intended to increase the compensation of the superintendent. We do not think any just argument can be drawn from that act against his claim under the statute of 1870. The argument in his favor is strengthened and rendered quite conclusive by the fact that in 1871 the provisions of law designating the fund for paying the expenses of the department .were revised and altered with a view to the increase of the fund (Laws of 1871, § 1, chap. 709), but that the legislature did not enumerate the percentage in question as belonging to that fund. In the face of this enactment, we perceive little force in the argument, on the part of the people, that the act of 1870 added the percentage in question to this fund. In the face of the clear disclosure of legislative purpose in the actual provisions of the law, we are not at liberty to yield to arguments drawn from the previous sufficiency of the superintendent’s salary, or to speculations as to the reasons which may have induced the legislature to make the enactment. The judgment should be affirmed. Church, Ch. J., Allen and Rapallo, JJ., concur; Grover, Folger and Andrews, JJ., dissent. Judgment affirmed.