People ex rel. McDermott v. Board of Estimate & Apportionment

Majority

p. 515

The People of the State of New York ex rel. William J. McDermott, Appellant, v. The Board of Estimate and Apportionment of the City of New York, Respondent.

Second Department,

October 27, 1911.

Headnote

Mandamus — Mew York city — board of estimate — recommendations ■ of board of justices of municipality — section 1373 of charter — definition.

The amendment made-to section 1373 of the charter of Mew York city by chapter 603, Laws of 1907, providing that the board of estimate and apportionment shall, on the recommendation of the board of justices of the Municipal Court, 11 prescribe ” the number of clerks and stenographers of the court and “fix” then* salaries, was not intended to make the recommendation of the board of justices binding on the board of estimate.

The word “prescribe” as used in said section defined.

The amendment imposed no limitation upon the power of the board of estimate to prescribe the number of employees or to fix then* salaries, except that it should be done upon the recommendation of the board of justices.

Unless there is a clear legal right to the relief sought mandamus does not lie. '

Mandamus does not lie to compel the board of estimate to increase the salary of the relator, a stenographer of the Municipal Court, who had been recommended for an increase in salary by -the board of justices.

Appeal by the relator, William J. McDermott, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1911, denying .the relator’s motion for a peremptory writ of mandamus.

Junius Pendleton Wilson, for the appellant.

James D. Bell [Sanders Shanks and Archibald R. Watson with him on the brief], for the respondent.

The relator is a stenographer in the Municipal Couri of the borough of Brooklyn, city of New York, and claims to be entitled to an increase in his salary from $2,000 to $3,000 per year, this claim being based upon a resolution of the hoard of justices

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of the Municipal Court recommending to the hoard of estimate and apportionment of the city of New,York that his salary, in common, with other stenographers of that court, be fixed at $3,000 per year. This action on the part of the board of justices was taken under the provisions of chapter 603 of the Laws of 1907, amending section 1373 -of the charter of the city of New York, and it is the contention of the relator that this resolution has the effect of establishing his right to an increase of salary. The act, in. so far as it relates to the question here under consideration, provides that the “ board of estimate and apportionment shall, on the recommendation of the board; of justices, prescribe the number of assistant clerks, stenographers, interpreters, attendants and other employees of the said court for each borough, and shall fix their respective salaries, except as herein'.specifically provided.” The statute, as it previously stood (Laws of 1901, chap. 466, § 1373, as amd. by Laws' of 1902, chap. 497), provided for a salary of $2,000 each for stenographers, and the amendment merely provided that the board of estimate and apportionment should “fix their respective salaries ” upon the recommendation of the board of justices.

To attempt to hold that a provision of a statute requiring a board to take action upon the recommendation of another board, is to make such recommendation as binding as the action of the body to which the recommendation is addressed, is to do. violence to language, and there is no reason whatever for assuming that the Legislature ever intended such a result. The fair intent of the Legislature was to provide for a recommendation, not as to salaries merely, but as to the number of employees, to be provided for the several courts, and it was left for the board of estimate and apportionment, in adjusting the financial affairs of the city, to “ prescribe the number, * * * and * * * fix their respective salaries.” “Prescribe” is a strong word. To prescribe means to lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order; to dictate; to point; to direct; to give as a guide, direction, or rule of action; to give law (22 Am. & Eng. Ency. of Law [2d ed.], 1179), and when the Legislature imposed the duty of prescribing the number of assistant clerks, stenographers, etc., and fix

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ing their salaries upon thé hoard of estimate and apportionment, it imposed no other limitation than that this should be done upon the “recommendation of the board of justices.” There was no limitation upon the power to prescribe; to fix the law of their compensation. They were not bound by the amount recommended; they were simply called upon to act upon the recommendation, and, having done so, the relator has no ground for complaint because. they refused to advance his salary. Certainly the recommendation of the board of justices did not operate to give him a legal right to the salary which they recommended, and without a clear legal right mandamus does not lie.

The order appealed from should be affirmed, with costs.

Jenks, P. J., Carr and Rich, JJ., concurred; Burr, J., concurred in result, being of opinion that the statute does not authorize the board of justices to make any recommendations to the board of estimate as to salaries.

Order affirmed, with ten dollars costs and disbursements.