Kip v. City of Buffalo

Acting under the authority of the two statutes, of this state in regard to the appointment to civil positions in the cities thereof, passed respectively in 1883 and 1884, and known as chapter 354 of the Laws of 1883, and chapter 410' of the Laws of 1884, the mayor of the city of Buffalo prescribed certain regulations for the admission of persons into.

In accordance with the charter, the mayor had in the meantime sent to the comptroller an estimate of the sums which he regarded as necessary for the proper conduct of his department for the ensuing year, and had included among the items the amount of $1,000 for salaries and expenses of executing the civil service law; the whole sum necessary for the estimated expenses of the department being $Y,2Y5. The comptroller sent the estimate to the common council, which reduced the mayor’s estimated sum for salaries .and expenses of executing the civil service law to $50.

The city has refused to pay the plaintiff anything for his services as secretary. The claim is made on its behalf that the acts of the legislature already referred to, gave the mayor no power to provide by any rule or regulation for the appointment of a secretary to the commission, nor did he have power in any event to make such appointment for a term which continued longer than the fiscal year of the city. It was also contended that the right to be paid depended upon the confirmation by the common council - of the estimate' made by the mayor, and that if the common council struck out the item in

In regard to the claim that the mayor had no authority under the Civil Service Acts and the regulations prescribed by him and approved by the state civil service commission of the city to" appoint a secretary to the city commission, we are of the opinion that such claim is not well founded. The reasons for this construction of the statute are very clearly given by the learned court in delivering its opinion at Special Term on this branch of the case, and it is sufficent for us to say that we entirely concur in them.

We are of the opinion also that the appointment of the plaintiff was for no designated term, but lasted during the pleasure of the appointing power, and hence the 'objection that it was for a longer term than the fiscal year of the city, falls to the ground, assuming even that an objection of-that kind were a defense to an action for the salary.

But it is insisted that the contract of employment was void ■because in violation of defendant’s charter, which requires, as defendant alleges, that the estimates for each department shall be itemized, and that any debt contracted in any department in excess of the amount appropriated to that special object, or. for an object for which no appropriation had been specially made, was not binding on the city, and that money raised for one purpose could not be used for another.

The court at Special Term held that the charter intended that the total sum appropriated to each department by the tax-budget as approved by the common council, might be redistributed in such department by the proper head thereof, so that a sum which was in excess of the amount needed for one itemized purpose might be used for another itemized purpose Where the appropriation fell short of the requirements. This could be done so long as the total „sum appropriated to the department was not exceeded. It was alleged that at the time of the appointment of plaintiff, there was an excess in

The ground for the right of any recovery in this action is thus seen to depend upon the finding of some balance in the fund for the mayor’s department, which had been'appropriated by the common council. The court expressly repudiated the claim made on the part of the plaintiff, that the contract of employment was good beyond any balance remaining of the appropriation of the mayor’s department which might legally be applied to the payment of the plaintiff. The right to obtain payment for services legally performed would thus to some extent at least depend upon the action of the common council in appropriating monej enough to permit of such payment. The prompt execution within the city of Buffalo of a general law of the state, applicable to every city within the terms of the statute, would thus depend a great deal upon the action of the Buffalo common council, and upon the views of its different members as to the necessity or propriety of any expenditures for such purpose, and as to the proper amount of such expenditures.

The construction given by the court below to the charter of the city of Buffalo upon the right of -the different departments to re-distribute the funds appropriated to each department within certain limits, may be entirely correct. We express no opinion upon that point. .

But we prefer not to rest our decision upon that narrow basis. In such a case as this, where the common council has practically refused to place in the tax-budget any, or a merely nominal sum for carrying out the provisions of the civil serv

The charter points out a way for raising all sums, which may properly be a charge against the city of Buffalo. This of course includes a charge for the services of a secretary of the commission spoken of, as Ave hold such a charge to be a legal one against the city. In relation to the enforcement of charges ■or the raising of moneys for purposes specially provided for under the charter, the provisions of that statute are very probably .the only means pointed out for defraying and enforcing such charges or raising such moneys. The charges for the salary of the secretary are not for a purpose specially provided for in the charter, and Avhile that statute jioints out a

It is quite clear that many objections and defenses' might be urged by the common council to proceedings by mandamus which would not involve the merits of the controversy, but would involve confusion and delay. About all that the writ of mandamus could accomplish with a common council opposed to an appropriation would be to require the board to meet and exercise the authority conferred upon it by law, and determine upon the appropriation of some amount which it might say was a reasonable compensation for the services performed. The sum might be much less than the officer would regard as reasonable, and much less than that estimated by the mayor. The court would not have the power to command the common council to agree upon or to name a definite sum, and thus the

The remedy by mandamus, even if proper, is by no means, adequate.

Proceedings by indictment to punish individual members of a common council who might willfully or maliciously persist in a refusal to appropriate a sum sufficient to pay these expenses for carrying out the civil service law, while it might be satisfactory for the purpose of vindicating the law, would not be of immediate avail to the officer who was asking for the 'payment of his salary.

These remarks answer the claim that while an appropriation by the common council is a condition precedent to a recovery by the plaintiff, there are legal remedies enough available to one situated like the plaintiff to cause such an appropriation to. be made.

We think it apparent that if an appropriation by the com- ■ mon council were a condition precedent to liability on the part of defendant, there are no adequate remedies to compel the appropriation of a proper and reasonable sum. What an alderman of a common council might in good faith think was a. reasonable sum is altogether too vague a basis upon which to. rest a right to be paid what in fact is a reasonable sum. The-proper enforcement of this general law cannot be made to-depend upon the conduct of the common council, or upon its-consent to appropriate a sum sufficient to carry it into effect. The city may raise the proper amount if it choose so to do. It. has the necessary machinery at hand for that purpose. If it. choose otherwise the law must still be executed, and there is no other way so adequate or effectual for that purpose as to permit the institution of an action like this, and the recovery of a judgment with the inevitable costs and expenses which

For these reasons vTe think the demurrer to the complaint was properly overruled, and the judgment entered upon the decision overruling the same should be affirmed, with costs, with leave to answer in twenty days upon payment of costs in all courts.

All concur.

Judgment affirmed.