Benvenga v. La Guardia

The city has appealed from an order of the Appellate Division, issued under article 78 of the Civil Practice Act upon the petition of seventeen justices of the Supreme Court of the State of New York (hereinafter referred to as justices), which invalidated a resolution adopted by the Board of Estimate on November 2, 1939. The resolution provided: “ That the Board of Estimate, pursuant to law, hereby reduces by two thousand five hundred dollars ($2,500) per annum, and fixes at $7,500 per annum the additional compensation payable to the justices of the Supreme Court for the counties within the City of New York, included within the First and Second Judicial Districts, to the Judges of the Court of General Sessions of the County of New York, and to the Surrogates and to the Judges of the County Courts of the counties within the City of New York, hereafter appointed or elected, including those elected upon the expiration of their present terms of office; * * * . ” The justices were all elected thereafter. The order appealed from directed payment of additional compensation to them at the rate of $10,000 per annum, that being the rate in effect before the adoption of the resolution.

Article VI, section 19, of the New York State Constitution provides, insofar "as relevant here: “ All judges, justices and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only

The question for our determination is whether the city possessed the power to make the reduction attempted. The matter of noninterference with the compensation of the judiciary, once it has been fixed by constitution or statute, has been a matter of extended consideration and discussion by the People since we became a nation. (See The Federalist, Vol. II, p. 107, McLean’s edition, New York, MDCCLXXXVIII [Hamilton].) In discussing it there, Alexander Hamilton had occasion to say: “ In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” (Emphasis in original.) It has been considered of such importance in this instance that the governing bodies of the Association of the Bar of the City of New York, of the New York County Lawyers Association and of the Brooklyn Bar Association have directed their respective presidents to indorse upon the petition herein the support by those associations of petitioners’ demand, and that has been done. In view of that, we shall go more into detail in this opinion than would ordinarily be necessary.

Justices of the Supreme Court are State officers whose compensation must be prescribed by the Legislature, subject to the constitutional provision quoted, supra (Freund v. Hogan, 264 N. Y. 203 ). The Legislature may confer limited authority to pay additional compensation to such justices and that power has been recognized and exercised since 1852 (The People v. Edmonds, 15 Barb. 529 ). No attempt under the first enactment delegating such power (L. 1852, ch. 374), nor under any subsequent act, looking toward a reduction of compensation, was ever attempted prior to the action complained of here in 1939.

Following the constitutional revision of 1925, there were added and amended sections 142 and 143, respectively, of the Judiciary Law. Section 142 was added in 1926 (L. 1926, ch. 155); section 143 was amended in 1928 (L. 1928, ch. 818).

The applicable portion of section 142 is as follows: “ Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as they are now receiving therefrom * * * The provi

Section 143, as amended in 1928, so far as pertinent here, provided: “ The board of estimate and apportionment of the city of New York may provide for the raising by tax, and for payment to the justices of the supreme court resident in the first and second judicial districts, to the judges of the court of general sessions of the county of New York, to the surrogates and to the judges of the county courts of the counties within the city of New York, or to the justices, judges or surrogates of any of such courts, of such additional compensation as such board may deem proper.”

The order of the enactment of the two sections is important. Section 142 continued the additional compensation the justices were receiving. Section 143 conferred power to provide further additional compensation. There was no provision for the reduction in the additional compensation when voted but only the provision in section 142 that that section should “ apply to the justices now in office and to those hereafter elected or appointed.” In other words, justices thereafter elected were to receive such additional compensation as justices previously elected might receive. To construe the language employed otherwise would disregard the idea of continuity clearly expressed in the words “ shall continue ” and would strike out the words “ shall continue to receive ” and write in their stead “ shall receive ”. We may not rewrite the statute. To put the emphasis on the word “ now ” in the first half of the sentence of section 142: “ The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed ” and to disregard the expression of futurity in the word “ hereafter ” in the latter half is to fail to give appropriate weight to the requirement that individual words should be construed in their setting with their context as. background. In this instance the appropriate interpretive section of General Construction Law is section 48, reading: “Tense, present. Words in the present tense include the future.” That is the interpretation to be made “ unless the general object of the statute, or the context of the language used, indicates that a different meaning is intended.” (Matter of Hammond v. City of Fulton, 220 N. Y. 337 , 342. See to same effect People ex rel.

The justices were classified only on the basis of residence. They were spoken of collectively and as a class, not as individuals. The language used referred to “ justices, judges or surrogates of any of such courts ” not to any of the justices, judges or surrogates of such courts. There was the provision that the section should apply “ to the justices now in office and to those hereafter elected or appointed.” There was to be equality between those in office and those to be incumbents later. There was to be no reduction in compensation for some. Section 143 was amended as a companion statute, to the 1928 amendment of section 142' but enacted first (L. 1882, ch. 40, § 1108; L. 1926, ch. 155; L. 1928, chs. 818, 819). The two sections are to be read together. When appropriate action was taken under section 143, section 142 made the continuance of such action obligatory to “ those justices elected in the first and second judicial departments ” then in office and “ to those hereafter elected or appointed.” When the Board of Estimate acted in 1930 to increase the compensation of justices it did so under permission granted by the Legislature. Having exercised the power granted, its action may not be undone by the same or a successor board except by legislative action or authority (Matter of Poughkeepsie Bridge Company, 108 N. Y. 483 ). Section 142 of the Judiciary Law is a general statute. Having exercised the limited power granted, the board

There is nothing new in the fact that authority may be granted to increase the compensation of a justice and authority to decrease it withheld. That is exactly what the People have declared to be their considered policy. In the Constitution of 1894 there was a prohibition against either increasing or decreasing the compensation of a justice during his term of office (art. VI, §§ 12, 15). In 1925 the People amended the Constitution so as to continue the prohibition against a decrease in compensation but struck out the prohibition against an increase. (Art. VI, § 19, quoted, supra.)

Statutes enacted in other States have received similar construction (Freeney v. Brown, 182 Ga. 818 ; Best v. Maddox, 185 Ga. 78 ; Petition of Breidenbach, 214 Wis. 54 . See, also, Beach v. Kent, 142 Mich. 347 ).

In Freeney v. Brown (supra), county commissioners, by constitutional amendment, were granted power to provide for additional compensation to certain superior court judges. They did so but on their attempt to withdraw the increase and terminate the payments were held to be powerless so to do. They had been granted an option to act but having acted, had exercised all the power delegated.

So in Best v. Maddox (supra), following Freeney v. Brown (supra), it was held that the county commissioners had no authority to terminate or reduce the supplemental salary voted by them even as to a subsequent term of the judge.

Again in In re Breidenbach (supra), it was decided that a legislative act granting power to a county board to pay additional compensation to certain circuit judges was an “ option ” but that when it was exercised the county board was without power to rescind its action in granting or to withhold the additional compensation granted.

Thus, whether the question has arisen with respect to the power of State Legislatures, as restrained by State Constitutions, or with respect to the power of local bodies, exercising limited grants of power conferred by Legislatures, the answer has been the same in the Supreme Court of the United States and in the State supreme courts of Pennsylvania, Wisconsin, Georgia, Louisiana and North Carolina, viz., that the power to increase judicial compensation does not include a power to' decrease it and that when the power to increase is once exercised, it may not be rescinded or modified without further express constitutional or legislative authority, depending upon the individual instance.

On five separate occasions during a period of nearly one hundred years, the Legislature has enacted legislation permitting the city to provide for additional compensation. In each instance, the authority delegated has been to provide “ such additional compensation as such board may deem proper.” In no instance has there been an express grant of power to the municipal body to reduce the compensation once fixed. Such power may not be implied. The theory that the power to increase compensation necessarily includes the power to take it away has been pronounced unsound. (Booth v. United States, 291 U. S. 339 .) Moreover, the withholding on those five occasions of the express grant of power is indicative of legislative intent that the power of reduction should be withheld. (Hyatt v. Taylor, 42 N. Y. 258 , 262; Wm. B. Astor v. Mayor et al., 62 N. Y. 567 , 578; Whitmore v. Mayor, 67 N. Y. 21 , 22; Polhemus v. F. R. R. Co., 123 N. Y. 502 , 507; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514 , 522, reversed on another point, 244 U. S. 205 ; Matter of Thomas, 216 N. Y. 426 , 429.)

Indeed the only legislative ' expression during that period upon the subject has been against any reduction of that portion of the additional compensation payable by the city to the justices of the Supreme Court resident in the first and second judicial districts (L. 1932, ch. 637, § 2). That came about as

Chapter 637 of the Laws of 1932, and the proceedings resulting in its enactment, establish beyond dispute the practical construction by the Legislature and the city of Judiciary Law, sections 142, 143, and the 1930 resolution of the board in three respects: (1) the additional compensation of $10,000 per annum was “ mandatorily fixed ” although paid by. the city; (2) the Legislature had reserved to itself and had not delegated to the city, the power to reduce such additional compensation and (3) any reduction would have to be brought about either by the Legislature or by the city with the special permission of the Legislature.

The order should be affirmed, with costs.

(dissenting). Article 6, section 19, of the State Constitution directs that the justices of the Supreme Court “ shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office.” From time to time, since the enactment of the Judiciary Act of 1847, the Legislature has made various changes in the salary paid by the State to these justices, the pay rate now in effect being stated in section 142 of the Judiciary Law, which says that each such justice “ shall receive from the state the sum of fifteen thousand dollars per year ” (the State pays an additional amount to justices assigned to the Appellate Division). Besides establishing a State-paid salary, however, the Legislature as long ago as 1852 recognized also that living costs in New York City justified the payment to the justices living therein a somewhat larger total compensation than was allotted to their brethren in other parts of the State (see The People v. Edmonds, 1853, 15 Barb. 529 ). The Legislature did not deal with that situation by voting the New York City justices any additional sum out of the State treasury but authorized the then Board of Supervisors of New York County (later the City Board of Estimate and Apportionment, still later the City Board of Estimate) to provide for the raising by tax, and for the payment to those particular justices, “ of such additional compensation as such board may deem proper ” (present section 143, Judiciary Law; original provision in L. 1852, ch. 374, held valid in The People v. Edmonds, supra). There is nothing in section 143 or in any of its predecessor statutes passed since 1852, banning downward, as well as upward, changes by the city in the “ additional compensation The city’s legislative body exercised the power so given it by the Legislature by fixing, from time to time over the years, additional increments of salary for the justices living in New York City. In 1852 the city’s allowance was $1,500 per year. Gradually it was augmented until from 1909 to 1930 the additional amount so provided by the city for each resident justice was $7,500 per year. In 1930 it was further increased to $10,000 per year, thus making the total compensation of each such justice $25,000 per year. That total rate was maintained until 1939. In November of 1939 the Board of Estimate, as

The substance of the claim of petitioners and of the holdings below is this: that the Legislature has delegated to the NeAv York City Board of Estimate only enough of the legislative salary-fixing power to permit the Board of Estimate to establish the amount of, and to increase, but never to reduce, the city-contributed part of these judicial salaries. That, of course, must mean that any increase of the city-paid increments becomes, as soon as provided for, frozen into laAV forever, fixed beyond the possibility of diminution. Admittedly there is nothing in the Constitution or in the Judiciary LaAV, expressly prohibiting the city from regulating its contribution to these salaries by making a reduction thereof, applicable to future-elected justices only. Indeed, a 1926 amendment (chapter 155 of that year) to section 142 of the Judiciary LaAV suggests that the Legislature recognized that the city would have such poAver under section 143, unless specifically negatived. That 1926 amendment, passed at a time when the city was paying $7,500 per year to each justice, added to section 142 this sentence: “ Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional

It is urged upon us that the Legislature, empowering the city to pay additional compensation to justices of the Supreme Court, could not reasonably have intended that the power thus given the city should be exercised in such fashion that some New York City Supreme Court justices should receive smaller compensation than others. Such a situation, it is said, is so manifestly unfair and discriminatory that the statutes should

Affidavits in this record show us that the city has in fact (by 1941 and 1942 amendments to the 1939 resolution of the Board of Estimate) set up differences in salaries even among those elected after the passage of the 1939 resolution. But that grouping, which allows the higher ($10,000) city-paid salary to justices assigned to the Appellate Division and to justices re-elected for a second term, even though their current terms began after the resolution took effect, does not touch these petitioners. All we have before us are the rights of these seventeen justices who were elected for the first time after the passage of the 1939 resolution, and none of whom are serving on the Appellate Division. The legality of the exemption from the 1939 resolution, by the 1941 and 1942 modifications, of other groups of justices, is not before us on this appeal. Nor are we here concerned with the salaries of any of the surrogates of the counties

The order should be reversed and the petition dismissed.

Lewis and Dye, JJ., concur with Conway, J.; Lehman, Ch. J., concurs for affirmance on the ground that the express power to increase compensation of justices of the Supreme Court of the First and Second Departments does not by fair inference include an implied power to withdraw in whole or in part an increase which has been granted to all the justices of these departments since any diminution of salary could apply only to justices elected thereafter; Desmond, J., dissents in opinion in which Loughran, J., concurs; Thacher, J., taking no part.

Order affirmed.