People ex rel. Smith v. Board of Police Commissioners — 29 N.Y. St. Rep. 384

Majority

p. 384

The People ex rel. George W. Smith, App’lt, v. The Board of Police Commissioners of Richmond County, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Municipal cobpobations—Police—Salames—Laws 1870, chap. 497.

The authority of the board of police commissioners, under Laws 1870, chap. 497, to determine the salaries of the members of the force, is continuous and unlimited as to time, and may be exerted from time to time as circumstances may require.

Appeal from judgment entered upon demurrer to return to alternative mandamus.

The mandamus proceeding was brought to compel the respondents to pay the relator a balance of salary alleged to be due to him.

The board of commissioners was created by chap. 497, Laws of 1870, and on February 12, 1877, said board adopted a resolution reducing the salaries of all members of the department ten per cent

Clifford A. H. Bartlett, for app’lt; John Croak, for resp’ts.

The question involved in this appeal has relation to the power and authority of the board of police commissioners of Richmond county to make changes in the salaries of the members of the police force of that county after such salaries were determined in the first instance.

The section of the law which controls the decision is this: “Section 4. The board of commissioners shall have the power to organize said police force in such manner and appoint such officers as they may deem for the best interest of said county, and the salary and compensation to be paid to the members of said police force, and its officers, shall be determined by said board of commissioners, and shall in no case exceed the salary which was ■established by law for like officers and services in the Metropolitan Police Department.”

This section leaves the salary and compensation of the members of the police force subject to the determination, decision or judgment of the board of commissioners, and such power was continuous and unlimited in point of time, and might be exercised in the discretion of the board at any time.

The legislature left the salary indefinite after fixing the maximum and delegating to the board the power to determine the same in its discretion. Th^ authority so delegated is continuous and unlimited, and to be exerted from time to time as circumstances require. This is not a case where a single exercise of power delegated to a board or persons exhausts the power and becomes final

This relator sustained no contractual relation with the police board, and his appointment as a police officer furnished him no right to an unchanged salary. He accepted the appointment subject to the power of the legislature to diminish his salary, and that power having been delegated to the police board, its exercise by that board was equivalent to legislative action.

The judgment and order appealed from should both be affirmed, without costs on the appeal from the order and with costs on the .appeal from the judgment.

Barnard, P. J., and Pratt, J., concur.