Majority
p. 504William H. Ricketts, Plaintiff, against The Mayor, Aldermen and Commonalty of the City of New York, Defendants. Decided June 30th, 1884.)
Headnote
The New York City Consolidation Act of 1882, being local in character, is within the prohibition in the constitution of the state (Art. III. § IS) of local or private bills creating, increasing or decreasing fees or allowances, of public officers during the terms for which they are elected or appointed. Hence the provision of section 1116 of that act, authorizing the Board of Estimate and Apportionment to fix the compensation of a crier of the Supreme Court, must be limited to future appointments, and the board has no authority to reduce the salary of such a crier appointed before that enactment.
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Trial of a controversy submitted on a case agreed upon.
The statement of the facts contained in the case submitted was as follows:
“I. That heretofore, and on the 6th day of April, 1865, the legislature of the State of New York duly passed an act known as chapter 296 of the Laws of 1865, of which section 2 provides as follows:
“‘ § 2. The justices of the Supreme Court of the first judicial district, or a majority of them, are hereby authorized to appoint, from time to time, as shall be necessary, a suitable person to discharge the duties of crier of the Supreme Court in the City and County of New York, such person to be paid such compensation as the Board of Supervisors of said county shall determine.’
“II. That in pursuance of the provisions of the said chapter 296 of the Laws of 1865, the justices of the Supreme Court in the City and County of 'New York did, on the 15th da}’- of May in the year 1865, appoint one Henry Bertholf crier of the Supreme Court in the City and County of New York, and the said Henry Bertholf duly entered upon and discharged the duties of such office-.
“ That thereafter and in pursuance of the provisions aforesaid of the said chapter 296 of the Laws of 1865, the Board of Supervisors of the County of New York aforesaid, duly passed a resolution, thereafter duly approved by the Mayor of the City of New York, the 13th day of December, 1865, wherein and whereby the salary of the crier of the Supreme Court in the City and County of New York was fixed and determined at the sum of $2,500 per year.
“III. That thereafter a vacancy occurring in the office of the crier of the Supreme .Court in the City and County of New York, the above-named William H. Ricketts was duty appointed by the justices of the Supreme Court of the City and County of New York to fill the said vacancy and to discharge the duties of said office as crier aforesaid, from the 15th day of Majr, 1874, and the said William H. Ricketts duty qualified and entered upon the discharge of the
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duties of such office on the said last mentioned date, and has since continued and now discharges the duties of such office as crier of said Supreme Court in the City and County of New York.
“ That the compensation as determined by the said Board of Supervisors aforesaid at the sum of $2,500 per year has never been changed or reduced by the said Board of Supervisors, and until the 31st day of December, 1883, such compensation as determined aforesaid was paid to and received by the said William H. Ricketts, as the crier of the Supreme Court of the City and County of New York.
“TV. That under the provisions of section 1116 of chapter 410 of the Laws of 1882, known as the Consolidation Act, which is as follows, viz:
“ 1 § 1116. The justices of the Supreme Court of the first judicial district, or a majority of them, are hereby authorized to appoint from time to time, as shall be necessary, a suitable person to discharge the duties of crier of the Supreme Court in the City and Count)' of New York; such person to be paid such compensation as the Board of Estimate and Apportionment shall determine,’ ” the Board of Estimate and Apportionment of the City of New York, in the month of December, 1883, fixed and determined the compensation of the crier of the Supreme Court in the City and County of New York at the sum of $1,500 per year.
V. That since the first day of January, 1884, the Comptroller of the City of New York has refused to pay the said Wm. H. Ricketts the compensation as crier of the Supreme Court, in the City and County of New York, at the rate of $233.83 per month, being at the rate of $2,500 per year, as determined by the Board of Supervisors as aforesaid, and since the first day of January has only paid to the said William H. Ricketts, as crier aforesaid, the sum of $125 per month, being at the rate of $1,500 per year, as fixed and determined by the Board of Estimate and Apportionment, as aforesaid.
“That since the first day of‘January, 1884, said William
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H. Ricketts has received such payment of $125 per month under protest and without prejudice to his rights to the balance withheld by the said Comptroller, as aforesaid. That the payment of the balance, so withheld, to wit, the sum of $250, has been duly demanded, and notice of the claim of said William H. Ricketts duly presented to the said Comptroller, and thirty days have elapsed since the presentment of such notice to the said Comptroller."
John 0. Shaw, for plaintiff.
The office of crier is incident to the judicial system of this state. He is a state officer, whose duties relate to the administration of the law for all the people and not merely the constituency of a particular district (Langdon v. Mayor &c of New York, 39 N. Y. Super. Ct. [7 Jones & S.] 467, 471; 1 Dillon on Munic. Corp. § 33 p. 144; Bouvier’s Law Diet; People ex rel. Henry v. Nostrand, 46 N. Y. 381 ; Sweeny v. Mayor &c of New York, 5 Daly 274 ; Rowland v. Mayor &c. of New York, 83 N. Y. 372 , and cases cited; Gilbert, J., in People ex rel. Gass v. Lee, 28 Hun 469 , 476; Brady, J., in Fellows v. Mayor &c. of New York, 8 Hun 484 ; People ex rel. Ryan v. French, 91 N. Y. 265 ). The plaintiff being a public officer, the salary annexed to such office could not be reduced so long as he holds office under the appointment (Const, art, III. § 18; People ex rel. Gass v. Lee, 28 Hun 469 , 476; Kerrigan v. Force, 68 N. Y. 381 : Sage v. Brooklyn, 89 N. Y. 189 ). Section 1116 of the Consolidation Act relates ex vi termini to future vacancies, and the salary of appointees hereafter appointed to fill the office (Consolidation Act § 2143; 5 Abb. Dig. 598; Rowland v. Mayor &c. of New York, 83 N. Y. 372 ; Kerrigan v. Force, 68 N. Y. 381 ; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38 ).
L>. J. Bean, for defendants.
The compensation attached to the office held by plaintiff is subject to be increased or diminished as may be directed by the legislature, at any time (Conner v. Mayor &c. of New York, 5 N. Y, 296 ; Warner v. People, 7 Hill 81 ; 2 Denio 272 ). Plaintiff held
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for no specified term, but at the pleasure of the appointing power, and while acting as a public servant became entitled to such salary as the law provided should be paid (Callahan v. Mayor &c. of New York, 6 Daly 230 ). The act in question does not contravene the constitutional provision in relation to local bills by which the fees or allowances of a public officer are decreased during his term of office. The constitutional provision has no application to officers who are not appointed or elected for a specified term.
By chapter 296 of the Laws of 1865 the justices of the Supreme Court for the first judicial department were authorized to appoint a crier of said court in the City and County of New York, whose compensation was to be fixed by the Board of Supervisors of said county. The justices, in pursuance of the authority thus conferred, appointed a crier whose qnnual salary was fixed by the Board of Supervisors at $2,500. The plaintiff was duly appointed to fill a vacancy thereafter occurring in said office, and has since continued to discharge its duties.
By the Consolidation Act (L. 1882 c. 410), the act of 1865 is re-enacted, the Board of Estimate and Apportionment being substituted for the Board of Supervisors (Consolidation Act § 1116).
In December, 1883, the Board of Estimate and Apportionment reduced and fixed the annual salary of said crier at $1,500, and the Comptroller of the city has, since January, 1884, refused to pay the plaintiff at any other rate.
He is a public officer, and was appointed before the adoption of the Consolidation Act, which is clearly local in character, and should be construed in harmony with section 18 of article 3 of the Constitution of 1875, which prohibits legislative enactments in a private orlocal bill “creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed.”
Under the rulings in The People ex rel. Gass v. Lee, ( 28 Hun 469 ) and Kerrigan v. Force ( 68 N. Y. 381 ), the bar
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mony of construction is preserved, which limits the Consolidation Act to future appointments made under its provisions without disturbing any rights which had vested prior to its enactment.
The plaintiff is entitled to judgment in his favor.
Charles P. Daly, Ch. J., and Beach, J., concurred.
Judgment for plaintiff.
Cases cited
- Rowland v. Mayor of New York 83 N. Y. 372 p. 507
- People ex rel. Ryan v. French 91 N. Y. 265 p. 507
- Kerrigan v. Force 68 N. Y. 381 p. 507, p. 508
- Sage v. City of Brooklyn 89 N. Y. 189 p. 507
- People ex rel. Satterlee v. Board of Police 75 N. Y. 38 p. 507
- Warner v. People ex rel. Conner 2 Denio 272 p. 507