Majority
p. 310George W. Walling v. The Mayor, &c., of the City of New York. (Before Oakley, Ch. J., Duke, and Slosson, J. J.) Feb. 24, 1855.
Headnote
The plaintiff, -who -was a policeman, appointed to perform his. duties as such at the office of the Chief of Police, in the city of New York, claimed to he entitled, under certain acts of the Legislature and ordinances of the Corporation, to an annual salary of $600 during the whole period of his service. Held, that haying been detailed to perform a special duty, he- was only entitled, under an ordinance of the Common Council passed August 18, 1861, as amended by an or- . dinanee passed November 14, 1851, to be compensated for his services at the rate of $500 per annum, but that under an ordinance passed Sept. 16, 1863, he was entitled to be so compensated from the 1st of January, 1853, at the rate of ⅞$600 per annum.Held, that section 10 of the act amending the charter of the city, passed April 12, 1853, by its reasonable construction, is not applicable to officers whose salaries or rales of compensation are fixed by a general ordinance and not by a special contract with each individual.
Motion for judgment on a verdict in favor of tbe plaintiff for $203, taken, subject to tbe opinion of tbe court at General Term. That the-case, may be properly understood, it is necessary to set forth, tbe pleadings.. Tbe complaint is as follows: “ Tbe above-named plaintiff complains as follows: Tbat tbis plaintiff, from and prior to tbe first day of September, 1851, until after tbe fourteenth day of September, 1853, was a policeman of tbe city of
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New York, duly appointed as suck, and entitled to tie exercise of snci office as policeman, and entitled to tie compensation allowed by law tierefor.”
And plaintiff furtier says, tiat prior to tie 1st day of September, 1851, ie was duly detailed by tie Mayor of said city to attend as suci policeman, and perform tie duties of policeman, at tie office of tie Ciief of Police, in said city, during tie wiole of tie above specified period, from prior to tie said 1st day of September, 1851,- until tie 14th day of September, 1858, and did; during tie wiole of said period, perform suci duties. And plaintiff furtier says, tiat by an act of tie Legislature of tie State of New York, entitled “ An Act authorizing tie Common Council of tie city of New York to regulate tie salary of policemen in said city,” passed April 10, 1850, tie Common- Council of said city were duly empowered and authorized to fix tie compensation of policemen.
And the plaintiff further says, tiat tie said Common Council, in due form of law, passed an ordinance, on tie 18th day of August, 1851, in tie words and figures following, to wit:
AN ORDINANCE.
Tie Mayor, Aldermen and Commonalty of tie city of New York, in Common Council convened, do ordain as follows:
§ 1. Tie salary of captains of police is hereby fixed at tie sum of eight hundred dollars per annum.
§2. The salary of the assistant captains of police is hereby fixed at tie sum of seven hundred dollars per annum.
§ 3. Tie compensations of sergeants of police, and policemen performing post or patrol duty in their respective wards, shall be for each and every day’s service, at tie rate of six hundred dollars per annum.
§ 4. Tie salary of policemen detailed by tie Mayor or Chief of Police for tie performance of any special duty is hereby fixed at tie sum of five hundred dollars per annum.
§ 5. This ordinance shall take effect on tie first day of September next.
And tie plaintiff furtier says, tiat tie said Common Council,
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on the 14th day of November, 1851, in due form of law, passed another ordinance, in the words and figures following, to wit:
An Ordinance amending an Ordinance fixing the compensation of Captains of Police and Policemen, approved August 18th, 1851.
The Mayor, Aldermen and Commonalty of the city of New York in Common Council convened do ordain as follows:
§ 1. The third section of the ordinance prescribing the compensations of captains and assistant captains of police, sergeants of police and policemen, approved August 18th, 1851, shall be amended by striking out the words “for each and every day’s service at the rate of,” so that said section, when thus amended, shall read as follows:
§ 2. The compensation of sergeants of police and policemen performing duty in their respective wards, shall be six hundred dollars per annum.
| 3. This ordinance shall take effect immediately.
And the plaintiff farther says, that the said Common Council on the 15th day of September, 1853, in due form of law, enacted as follows:
“Resolved, that the pay of the detailed policemen be and is hereby fixed at the same rate as all other policemen, viz., six hundred dollars per annum, to take effect from the first day of January, 1853.”
And plaintiff further says, that during the aforesaid period, to wit, from the first day of September, 1851, to September 14th, 1853, he received for his said services as policeman only at and after the rate of five hundred dollars per annum, whereas the amount actually due to plaintiff for his aforesaid services, under the ordinances aforesaid, over and above what he so received, is two hundred and three dollars and eighty-four cents; which amount the plaintiff duly demanded from Azariah C. Flagg, Esq., Comptroller of the city and county of New York, and which said Comptroller refused to pay.
Wherefore, the plaintiff demands judgment for the said sum of two hundred and three dollars and eighty-four cents, with interest from the twenty-fourth day of January, 1854, besides costs.
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The answer of the defendants to the complaint herein, respect-folly shows to the court:
First. — That they admit that the said plaintiff was, during the periods mentioned in said complaint, a policeman of the city of New York, and was detailed by the Mayor of said city to attend as such at the office of the Chief of Police, in said city, during the period therein alleged, and they aver that the said plaintiff was appointed as such policeman on or about May 10th, 1850, for the term of four years thereafter.
Second. — And these defendants, further answering, admit the passage of the various resolutions in said complaint, set forth., creating and fixing the salaries of captains, assistant captains, sergeants and policemen. And these defendants, farther answering, aYer that it is expressly provided by the act “entitled an act authorizing the Common Council of the city of New York to regulate the salary of policeman in said city,” passed April 10th, 1850: “That (§ 1) the compensation of officers and patrol-men named in this act shall hereafter be fixed by the Common Council, and when so fixed shall not be increased or diminished during the time for which they were, or shall be hereafter, appointed.”
Third. — And these defendants, further answering, aver that by an act of the Legislature of the state of New York, entitled, “An act further to amend the charter of the city of New York,” passed April 12th, 1853, it is provided as follows: (§ 10.) “No additional allowance beyond the legal claim under any contract with, the Corporation, or for any service on its account, or in its employment, shall ever be allowed.”
And these defendants, farther answering, aver that the ordinance in said complaint referred to, passed September 15th, 1853, raising the pay of detailed policemen to six hundred dollars per annum, to take effect from the first day of January, 1853, was in violation of the first section of the said act of the Legislature, passed April 10th, 1850, and of the said 10th section of said amended charter, (the salary of said plaintiff having been fixed by the ordinance passed August 13th, 1851, at five hundred dollars per annum, as alleged in said complaint,) and consequently was illegal and void.
The said defendants, further answering, aver that they have paid to the said plaintiff all that was due to him for services ren
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dered as such detailed policeman, and they deny that there is due to the said plaintiff from these defendants therefor, the sum mentioned in said complaint, or any sum whatever.
Therefore, the said defendants, pray that the said eomplaint may be dismissed, with costs.
H. L. Clinton, for the plaintiff,
moved for judgment- on the verdict, and argued as follows:
I. The third section of an ordinance passed by the-Common Council, on the 18th day of August, 1851, had the effect, in law, to fix the salary of all policemen at $600 per year, notwithstanding the attempt by the' fourth section of the same-ordinance to limit the pay of detailed men to $500 per annum.
An act entitled “ An act - authorizing .the Common Council of the city of New York to regulate the salary of policemen in said city,” passed April 10, 1850, (see Laws. 1850, p. 668,) provides that “The compensation of officers-and patrol-men named in--this act shall hereafter be fixed by the Common Council,” &c.
Under this act of the Legislature the Common Council, in the 3d section of the ordinance in question, enacted that “ The' compensation of sergeants of police and policemen performing post or patrol duty in their respective wards, shall bej for each and every day’s service, at the rate of six hundred dollars per annum.” This section was amended by an ordinance of the Common Council, passed 14th November, 1851, so as to read, “ The compensation of sergeants of police, and policemen performing duty in their respective wards, shall be six hundred dollars per annum.”
The language of the next section is, “ The salary of policemen detailed by the Mayor or Chief of Police, for the performance of any special duty, is hereby fixed at .the sum of five hundred dollars per annum.’.’
This 4th section, I maintain, is inconsistent with the preceding one, and directly contrary to the spirit and letter, of the act of 1850, which gave the Common Council power to fix the salary-of policemen, and altogether nugatory and void.
II. In any event, the plaintiff is entitled to compensation from the first of January, 1853, to the fifteenth day of September of that year, when the Common. Council passed an ordinance providing “That the pay of the detailed policemen be, and is hereby, fixed
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at the same rate as all other policemen, viz., six hundred dollars per annum,, to take effect from the first day of January, 1853.”
There is nothing in the act of 1850 prohibiting the Common Council from passing the ordinance last named.. The entire section of the Act of 1850, applicable to this subject, is in these words: “ § 1. The compensation of officers and patrol-men named in this Act' shall hereafter be fixed by the Common Council, and when so fixed, shall not be increased or diminished during the time for which they were or shall be hereafter appointed. Police officers, when sent out of the county on public business, shall be allowed all necessary expenses, upon the same being sworn to and approved by the Mayor, and allowed by the Board of Supervisors.”
Detailed men, as well as those performing ordinary duty, are “patrol-men.” The salary of patrol-men, or those doing “post or patrol duty,” was fixed by the 3d section of the ordinance of the 18th of August, 1851. The expression is, “performing postor patrol duty in their respective wards.”
If detailed men performed “ patrol” duty, and were therefore “patrol-men,” their salary then became fixed at $600 per annum. If they were not “patrol-men,” then the statute does not on its face prohibit the Common Council from raising their salary whenever they see fit. The law imposes upon all policemen the obligation to do duty both in and out of the respective wards where they reside — at all events, whenever their superiors in command shall so direct them. The idea is whimsical and fantastical, of making the locality of their services a criterion as to salary.
The service is the same, whether performed in one- ward or another, or in different wards, as their superiors in office shall in their wisdom direct. The statute recognizes no such “ distinction without a difference.”
IH. The 10th section of the statute entitled “ An act further to amend the Charter of the City of New York,” passed April 12th, 1853, which provides that “no additional allowance beyond the legal claim under any contract with the corporation, or for any service on its account or in its employment, shall ever be allowed,” has no application to this case.
Here the rule laid down in Dwarris on Statutes, 558 :• “A thing which is in the letter of the statute is not within the stat
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ute unless it be within tbe meaning'of the enactment,” should be borne in mind.
The whole of this section relates to contracts, express or implied. This is the subject matter of the section. Within every rule of legal construction or even of verbal criticism, the language employed should be construed with reference to that subject matter. Throughout this statute, where the word “contract” appears, it is palpable that it refers to an express contract. This is sufficiently apparent from the 12th section, which is in these words: “ § 12. All work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than two hundred and fifty dollars, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice for the frill period of ten days; and all such contracts, when given, shall be given to the lowest bidder with adequate security. ' All such, bids or proposals shall be opened by the heads of departments advertising for them, in the presence of the Comptroller and such of the parties making them as may desire to be present.” >
The expression in the 10th section, “under any contract with the corporation” means a contract over $250, which must be made in the particular manner designated by the 12th section.
The phraseology “ or for any service on Its account, or in its employment,” refers to work done, not “involving an expenditure of more than two hundred and fifty dollars,” and to cases where there is no express contract, but one implied in law.
The latter clause of the 10th section was necessary, in order to prohibit the Common Council from paying “ additional allowance beyond the legal claim,” existing against them, where the amount involved does not exceed $250. The whole object of this section was to prevent contractors from pillaging the public treasury.
“ The real intention will always, in statutes, prevail over the literal sense of the terms.” (Dwarris on Statutes, 557.)
The doctrine has been fully settled By the court of last resort, that the right to compensation, as regards salaried officers, grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him. (Conner v. The Mayor, &c., 1 Sel., 285; Warner v. People, 2 Denio, 272 .)
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The plaintiff is clearly entitled to judgment for the amount, for which a verdict was taken.
R. J. Dillon, counsel for the Corporation, contra.
I. The plaintiff is not entitled to recover. 1. By the act entitled “ An Act authorizing the Common Council of the City of New York to regulate the salary of policemen in said city,” passed April 10th, 1850, the Common Council have an exclusive discretion in regulating and graduating the compensation of the-various members of the police department. (Laws of 1850, p. 668.) 2. The only limitation placed upon their discretion in this respect, is that which prevents them from increasing and diminishing the compensation when so fixed during the time for which the officer or patrol-mañ shall have been appointed. (Id.) 3. The ordinance of August 18th, 1851, making a distinction between the salaries of patrol and detailed policemen, was, therefore, valid.
II. The ordinance of the Common Council, passed September 15th, 1853, was illegal, and tfull and void. 1. The compensation of the plaintiff having been “fixed” by the ordinance of August 18th, 1851, the Common Council have no power to increase or diminish the same during the time for which the plaintiff had been appointed. (Laws of 1850, p. 669.) The People, ex rel, Stuart, v. Edmonds. Opinion — Clerke, J., Special Term; Morris, J., General Term. 2. The “Act” in relation to the police department in the city of New York, passed April 13th, 1853, gave the Common Council no power to increase the compensation of officers, policemen, or doormen, who were appointed under the act of 1850, and whose terms had not expired. 3. The ordinance is in conflict with the provisions of the 10th section of the Amended Charter of 1853. The only “ legal claim” which the plaintiff had against the corporation at the time of its passage, was a claim to compensation at the rate of $500 per annum, under the ordinance of August 18th, 1861.
LV. The complaint should be dismissed, with costs.
By the COURT,
The decision of the court is,
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that the plaintiff, as a policeman detailed to perform a special duty, was only entitled, under the ordinance of the corporation, passed the 18th of August, 1851, as amended by the ordinance passed the 14th of November, 1851, to be compensated for his services at the rate of $500 per annum, but that under the ordinance passed the 15th of September, 1853, he was entitled to be so compensated from the 1st of January, 1853, at the rate of $600 per annum. The grounds of our decision are
1st. That the Common Council, under the act of the Legislature passed April 10th, 1850, referred to in the complaint, were felly authorized to make a distinction between different classes of policemen, and to regulate their salaries according to the nature of the services which each class was required to perform.
2d. That the ordinance of the 15th of September, 1853, giving . to the detailed policemen a salary of $600 per annum, from the 1st of January, 1853, was a lawful exercise of the discretionary power given to the Common Council by the act of the Legislature, amending the charter of the city, passed April 12, 1853.
And lastly, That the exercise of this discretion was not restricted by the 10th section of the same act — that section not being applicable, in its reasonable construction, to officers of the corporation whose salaries or rates of compensation are fixed, not by a special contract with each individual, but by a general ordinance. In conformity to these views, and according to a calculation we have caused to be made, the plaintiff is entitled to recover, including interest on the balance due to him, only the sum of $77.83. The verdict must be therefore reduced to this sum, and on the verdict so reduced, judgment must be entered in his favor, with costs.