In re an Application by Delaney — 70 N.Y. St. Rep. 636

Majority

p. 636

In the Matter of an Application by Lott Delaney for a Writ of Certiorari.

(Supreme Court, General Term, Third Department,

Filed December 3, 1895.)

Headnote

Municipal corporations—Fire commissioners—Discharging -firemen.

Under chapter 822 of 1887, amending the charter of Saratoga Springs, and repealing section 61 thereof, the fire commissioners had no power to discharge a fireman, on the sole ground that there were no moneys unappropriated or tax levied for the payment of his salary.

Application by Lott Delaney for a writ of certiorari to the-board of fire commissioners of the village of Saratoga Springs to-compel the reinstatement of relator as a member of the fire depart-of said village. Judgment for relator.

McCall & Brusnihan, for relator: A. W. Shepherd, for resp’ts.

By chapter 322, Laws 1887, amending the charter of the village of Saratoga Springs (chapter 220, Laws 1886), a board of fire commissioners was created for said village. The act provided, among other things, that said commissioners should control the expenditure of all funds belonging to the fire department, should have power to employ a clerk, chief engineer, assistant engineer, superintendent of the fire alarm telegraph, and four or more firemen, and the entire and exclusive management and control of all apparatus for the extinguishing of fires in said village, and of all property belonging to, or intended to be used by, the fire department thereof. The act further provided that the compensation of said engineer, assistant engineer, superintendent of the fire alarm telegraph, and firemen should be paid out of the funds of the fire department, and that such employes may be removed by said commissioners, but not without cause, and after having a reasonable opportunity to be heard. By the charter of

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said village the trastees thereof are authorized to raise by an annual tax, to be levied in June of each year, for the use of the fire department, the sum of $7,000, and, if necessary, in their discretion, a further sum of $1,000; this seven or eight thousand dollars constituting the fire department fund, and the village having no power to raise any other or greater sum. But chapter 32-2, Laws 1887, supra, provides that all penalties for infractions of by-laws ■enacted by the fire commissioners, and all sums required by law to be paid as taxes by incorporated fire insurance, companies, shall be added to the fire department fund. On March 19, 1895, the relator was appointed fireman, by a- resolution of said fire commissioners, for one year from May 1, 1895, at a salary of $600, payable monthly. The commissioners at the same time appointed, for the said period, a chief engineer, superintendent of fire alarm telegraph, clerk, and nine other firemen. On March 20th the relator accepted said appointment, and acted thereunder until June 7, 1895, when the board of fire commissioners assumed to discharge him. Relator was not removed for cause or on charges, or after an opportunity to be heard, but on the sole ground, as stated by the respondents in the return, that- on March 19th, when he and the other employes were appointed, no money or tax for the fire department fund for the ensuing year had been voted or levied, either for salaries of employes, or ■ other expenses of the department; that there was only $1,762.18 to the credit of the fire fund in the hands of the receiver of taxes, which sum was then anticipated and appropriated for the salaries of the then employes, and for other expenses; that by the employment of relator and others on the 19th of March, 1895, the fire commissioners attempted to incur a debt or expenditure of $7,800, in violation of the express provisions of section 61 of the charter of said village, which provides that “no debt shall be incurred or created by said village, by the trustees, or any other officer thereof in their official capacity; * * * nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied as herein directed” ; that the contract made, or assumed to be made, with the relator on March 19th, was void, and hence that the respondents disregarded it, and the services of relator were dispensed with, because no legal contract of employment existed with him.

It is not suggested that relator and the other employes, so appointed on March 19,1895, were not in fact necessary, or required by the fire commissioners in the performance of their duties under the act of 1887 ; but, as there was "no money unappropriated in the hands of the village receiver, in the funds of the fire department, and there being none levied at the time to pay the wages of the said employes for the ensuing year, respondents contended that the fire commissioners had no legal authority to appoint either said chief engineer, superintendent, secretary, or firemen ; that the commissioners should have waited the levy of the taxes in June following. If the contention of the respondents is correct, the fire department of the village in May, 1895, and until the levy of the taxes, in June of that year, would have been disorganized, and the

p. 638

village without fire protection ; and. it follows that if, in the course of any year, after the .levy of the annual tax in June, the fire fund, through any unusual or unforeseen expenditure, should be exhausted, the commissioners would be unable to employ firemen necessary to do the work until the ensuing June.

With some hesitation, we have reached the conclusion that the position taken by the respondents cannot be sustained. We think that the act of 1887 shows an intent to confer upon the' fire commissioners power, at any time, to employ men when necessary and proper to keep the fire department in an efficient condition. They have absolute control of the expenditure of the funds belonging to the fire department. They are given the absolute right to appoint firemen. Under the act, we see no reason to doubt that they may in any year control the appropriation of the funds of the department, by a resolution adopted before, as well as after, the tax is. levied. The control of the expenditure of the funds of the fire department, given to the fire commissioners, is unqualified. An examination of the whole act shows an intent to confer upon them such power as is necessary to keep the fire department in an efficient state. We think their power is not. restricted by section 61 of the charter, but only restricted by the provisions of the act of 1887 itself. The act provided that the compensation of officers and employes shall be payable out of the fire fund. This fund, as we have seen, is a sum' not exceeding $8,000, which the trustees of the village may levy annually ; the amount received from the annual tax on incorporated insurance companies and certain penalties. The commissioners, under the statute, cannot incur in any year a liability beyond the amount of said fire fund. Should they assume to do so, their,act would be without authority. But to that extent they can legally contract, without regard to the provisions of section 61, supra. Had the respondents made it appear that the employment of relator and others on March 19, 1895, created a liability beyond the amount authorized by the statute of 1887, it may be that they would have been authorized to discharge relator. But his dismissal was not placed on that ground in the return of the respondents, but on the sole ground that his employment was in violation of the provisions of section 61, supra.

We think that the doctrine established in the case of People v. Leary, 17 Wky. Dig. 116, approved in Mingay v. Hanson, 102 N. Y. 695 , as to the water commissioners of said village, applies. In the case cited it was held :

“That under the Laws of 1872 (chapter 763) a new department was organized, under the control of water commissioners, who have the power to manage and control, repair, make alterations, and use all necessary precautions for the preservation and security of the waterworks. The commissioners receive and expend the income and rents derived from the waterworks, in the discharge of their duties. The statute, as a whole, indicates a power in the commissioners quite independent of the trustees, and confers upon them all the power before that time possessed by the trustees of the village. The trustees have no control over the funds derived rom the waterworks, which are to be expended by the commis

p. 639

sioners in the discharge of their duties under the law. Undoubtedly the water commissioners are officers of the village, which is liable for their acts done within the authority conferred by the law; but they are officers to whom powers are given in excess of the powers given to the officers of the village under the charter of 1896. As to such officers and such powers, the restriction of section 61 is, by implication, and of necessary, repealed.”

It will be seen that the case cited is quite similar to this. In that case the powers of the water commissioners of the village of Saratoga Springs to incur a debt was considered, and it was held that the water commissioners were not restricted by the provisions of section 61 of the charter. Here, as in that case, a new department was made by the act of 1887, creating a board of fire commissioners. Such board controls the property belonging to the fire department, and the expenditures of funds thereof Although the fire commissioners are officers of the village, powers are conferred upon them by the act in excess of the powers theretofore possessed by the trustees under the charter. It is true that it appears in the case cited that the water commissioners received the greater part of the funds used by them from water rents entirely under their control, while the greater part of the fire department fund is raised by a tax levied by the trustees of the village. But the act of 1887 provides that the "fire department, and hence the trustees, after levying the tax for the fire fund, have no more control over it than they have over the water fund received from water rents by the water commissioners of said village.

On the whole, we think, as held in the case cited as to the water commissioners, that as to the fire commissionerr, and the powers conferred upon them by the act of 1887, the restriction of section 61 of the charter is repealed by implication, as well as by the express enactment contained in section 5 of the act.

The case of Latham v. Richards, 21 Hun, 360 , to which we are referred by the learned counsel for respondents, is not parallel. There the trustees of the village of Saratoga Springs assumed to create a debt for a large amount in the purchase of a farm for a cemetery, no money or taxes for that specific object having been voted. In that case there was a plain attempt to violate the provisions of section 61 of the charter. Ho subsequent statute had, by implication or otherwise, repealed section 61 of the charter, which was therefore applicable, and hence the contract attempted to be made by the trustees was void. In the case under consideration, an act passed subsequent to the act of 1866, creating a new department, authorized the fire commissioners to make the contract with relator under which he claims, and, if the latter act is inconsistent with the provisions of section 61 of the said charter, that section must be deemed repealed pro tanto.

We conclude that the relator is entitled to judgment, with the usual costs.

All concur.

Cases cited

Mingay v. Hanson 102 N. Y. 695 N.Y. 1886-06-01 p. 638