People ex rel. Kelly v. Dooley

This is an appeal from an order of the Special Term, granting the motion of female probation officers of the board of city magistrates of the Second division, city of New York, for a peremptory writ of mandamus directing the appellant Edward J. Dooley, as acting chief magistrate, to certify to the municipal civil service commission of the city of New York, a pay roll containing their names, together with the amount of salary due to each from January 1 to January 15, 1915, with a statement that they have performed their duties as such officers and are entitled to their several salaries, and directing the other appellants, who compose the board of estimate and apportionment, to- readjust their appropriation for probation officers as appearing in the budget of 1915, in such manner as to provide for pay

There was no authority prior to the year 1904 for the payment of any probation officers, male or female. Although the appointment of such officers had been generally authorized by the provisions of section 11a of the Code of Criminal Procedure, the section contained a clause providing:

“No probation officer appointed under the provisions of this section shall receive compensation for his services as such probation officer.”

In 1904, the section was amended (chap. 508) by inserting therein the following:

“The board of estimate and apportionment in the city of New York may, in their discretion, determine whether women appointed to act as probation officers, not detailed from other branches of the public service, shall receive a. salari', and if they shall so determine, they may fix the amount thereof and provide for its payment.”

The relator Hatfield was appointed in February, 1904, and the relator Peacock in May, 1906. In June, 1910, a law was enacted pertaining to inferior criminal courts of the city of New York (chapter 659, § 96, Taws of 1910), which provided:

“The female probation officers and civilian male probation officers of the board of city magistrates of the second division shall continue in office, unless and until removed as provided by this act.”

The board of city magistrates was directed h> appoint five civilian male probation officers in addition to those continued, and power was given the majority of the justices composing such board to appoint, from time to time, such additional probation officers as the board of aldermen, upon the recommendation of the board of estimate and apportionment, might authorize, and to remove such officers at pleasure. In the same year, by an act taking effect September 1st (chapter 610), section 11a of the Code of Criminal Procedure was amended so as to read in part as follows :

“No probation officer appointed under the provisions of this section shall receive compensation for his services as such probation officer until allowed by proper ordinance or resolution, as hereinafter prescribed. » * * The board of estimate and apportionment in the city of New York * * * may in their discretion determine whether probation officers, not detailed from other branches of the public service, shall receive a salary, and if they shall so determine, they may fix the amount thereof and provide for its payment, and they may also provide for the necessary expenses of probation officers.”

The relator Hatfield ceased to be a probation officer prior to September 1, 1910, hut was reappointed March 1, 1911. Thei relator Kelly was appointed March 30, 1912, the relator Virden September 27, 1912 ; the relator Holden October 31, 1912, and the relator Coyle January 16, 1913. They received in 1914 a salary of $900 each, with the exception of Miss Kelly, whose salary was fixed at $1,200. It is al

“That this board request the board of estimate and apportionment to readjust the budget for 1915 in accordance with the provisions of section 237 of the charter to conform to a proposed schedule as follows: three male probation officers, at $1,500 per annum, $4,500; 7 male probation officers, at $1,200 per annum, $8,400 ; 3 female probation officers, at $1,200 per annum, $3,600; 11 female probation officers, at $900 per annum, $9,900—total, $26,400, so that the item of $26,400 may be used for the salaries of the probation officers now in office.”

The number of both male and female officers stated in this resolution is identical with the number stated in their departmental estimate, and the gross amount of salaries is the same as that allowed by the board of estimate and apportionment and included in the budget. This resolution was received by the board of estimate and apportionment, and referred to its committee on tax budget for consideration and report, who later reported:

“(1) That the board should make no change in the budget for the Magistrates’ Courts, Second Division, in so far as it relates to the number or salaries of men and women probation officers; that the action taken by the board should stand.”

The report was adopted, and on February 1st following the board of city magistrates adopted the following resolutions:

“Resolved, that in accordance with the resolution of the board of estimate and apportionment we designate the following female probation officers to be retained at a salary of $1,200 per annum: Ellen D. Kelly, Elizabeth A. Hafdoncourt, Blyra P. Hughes, Ellen Bl. O’Grady, and Marie P. Holden; and Mary E. Hickey and Btargaret Coyle at a salary of $900 per annum.”

“Resolved, that the head of this department be instructed to comply with the provisions of section 1543 of the charter, with respect to those who are not designated.”

Section 1543 of the charter then provided:

“Wherever in any department or institution an office, position or employment is abolished, or made unnecessary through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus abolished or made

unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or "in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services."

[1] It appears that the relators Kelly and Coyle were retained at, the same salary they received in 1914, $1,200 and $900, respectively, and the relator Holden was retained and her salary advanced from $900 to $1,200, and they can have no grievance or interest in the subject-matter. The remaining relators were by the action of the board of magistrates automatically suspended without pay by the provisions of section 1543 of the charter, if the action of the hoard of estimate and apportionment was valid and enforceable. Without considering the first contention of the appellants, which seems to be sound, I think that the order must be reversed upon the ground that the Special Term was without legal authority to compel the acting chief magistrate to prepare, certify, or forward a pay roll to the civil service commissioners or to compel the board of estimate and apportionment to readjust its budget.

No duty was imposed upon the acting chief magistate, either by statute or by the action of the board of city magistrates, to prepare, certify, or forward a pay roll to the municipal civil service commission. Section 53, chapter 659, of the Laws of 1910, to which our attention is directed by counsel for the respondents, and upon which he seems to rely, does not create or charge the magistrate with the performance of this duty, and mandamus will not lie to compel a public officer to perform a duty not imposed upon him by law. People ex rel. Jones v. Thompson, 147 App. Div. 150 , 132 N. Y. Supp. 215 . In addition to this, the evidence satisfactorily establishes that three of the relators, whom the writ commands the acting chief magistrate to certify are duly qualified and acting officers “and entitled to their several salaries,” were not deprived of any right to salaries for services rendered during that year, so that the acting chief magistrate is improperly required by the writ to certify to conditions that do not exist.

[2, 3] The creation of the budget, the matters therein contained, and their readjustment, are exclusively within the jurisdiction of the administrative officers of the city government, and the 'courts have no power in proceedings of this character to interfere with or to supervise their action. People ex rel. Schwab v. Grant, 126 N. Y. 473 , 482, 27 N. E. 964 ; People ex rel. Clapp v. Listman, 40 Misc. Rep. 372 , 82 N. Y. Supp. 263 , affirmed on opinion below 84 App. Div. 633 , 82 N. Y. Supp. 784 ; 26 Cyc. 279. The respondents contend that under the provisions of section 237 of the charter the court has the power to compel the board of estimate and apportionment to so readjust its budget as that it will comply with the departmental estimate. The contention is without merit. Bird v. Mayor, etc., of New York, 33 Hun, 396 ; People ex rel. Daly v. York and Others, 66 App. Div. 453 , 73 N. Y. Supp. 331 , affirmed without opinion 171 N. Y. 627 , 63 N. E. 1120 ; People ex rel. Trustees v. Town Auditors, 126 N. Y. 528 , 27 N.

[4-7] The order should also be reversed upon the merits. The board of estimate and apportionment is vested with the sole power-of determining whether probation officers, male or female, not detailed from other branches of the public service, shall receive a salary, and directs that if they so determine they shall fix the amount thereof and provide for payment. This power they may exercise each year when they make up their budget, and the omission to include salaries therein necessarily establishes that for such year their determination is that probation officers who are omitted shall not receive a salary. When they determine, as in the case at bar, that a stated number of the probation officers in a division are to be paid a certain salary, and the number of such officers then employed is greater than the number for • whom salaries are provided, it is for the board of city magistrates to determine which of the officers shall receive such salaries. That is all the board of estimate and apportionment did in the budget of 1915. They did not create any new offices or abolish any existing ones. This they could not do. It was for the board of city magistrates to determine which o-f the female officers should receive the salaries, and they made their selection. Those who were not selected remain probation officers; they possess the powers of probation officers, but receive no- compensation for their services. If the board of city magistrates did not care to appoint the four additional male probation officers for whom salaries had been provided, such salaries remained in the treasury unexpended;. but there is no power in the court .to compel the board of estimate and apportionment, under the guise of a readjustment of their budget, to provide a salary for the additional female probation officers whom they had determined should not, for that year, at least, receive salaries. The distinguishing fact that the sole power to determine whether probation officers should receive a salary is vested in the board o-f estimate and apportionment, present in the case under consideration and absent in the cases to which our-attention is directed by the learned counsel for the respondents in his discussion upon this branch of the case, removes it from the operation of the rule he seeks to invoke.

The order must be reversed, with $10 costs and disbursements, and the proceeding dismissed. All concur.