Cox v. Mayor

• Citation: 9 N.E. 48,103 N.Y. 519
• Parties: COX v. MAYOR, ETC., OF NEW YORK.
• Decision Date: 23 November 1886
• Court: New York Court of Appeals

103 N.Y. 519

9 N.E. 48

COX

v.MAYOR, ETC., OF NEW YORK.

Court of Appeals of New York.

November 23, 1886.

Thomas Allison, for plaintiff.

D. J. Dean, for defendants.

EARL, J.

The plaintiff was elected one of the police justices of the city of New York, in the fall of 1869, for a term of six years, commencing on the first day of January following, and he served in his office until November 3, 1873, when his term came to an end pursuant to the provisions of section 2 of chapter 538 of the Laws of 1873. He was paid for his salary at the rate of $10,000 per year, to and including July 31, 1871; and thereafter, while he was in office, he demanded his salary at the same rate, but was paid only at the rate of $5,000. He commenced this action to recover the balance of his salary, being the difference between the $5,000 paid and the $10,000 claimed. The defendants in their answer alleged that the plaintiff's salary was lawfully but $5,000, and that he was paid the greater sum in 1870 and 1871 by mistake, and without authority of law, and they set up the over-payment of $7,916.66 as a counter-claim, for which they demanded judgment. The action was brought to trial before a judge without a jury, and he found that plaintiff's salary was lawfully but $5,000, dismissed his complaint, and gave judgment to the defendants for their counter-claim. The plaintiff appealed to the general term, where the court modified the judgment by disallowing the counter-claim, and affirmed it as so modified. Both parties then appealed to this court.

While this case is not free from some difficulty and doubt, we find no satisfactory reason for differing from the general term. The act, chapter 508, Laws 1860, provided for the recognition of the police courts in the city of New York, and imposed additional duties upon the police justices; and in section 26 provided as follows: ‘And for the additional duties imposed in this act the common council or board of supervisors in said city and county may increase the compensation of any officer mentioned herein.’ At the time that act was passed the salary of police justices was $3,500; and in December, 1862, the common council, professing to act under that statute, increased the salary to $5,000, payable monthly from January 1, 1863. By section 11 of the act, chapter 876, Laws 1869, it was enacted that ‘the common council, or any head of department of the city of New York, is hereby prohibited from creating any new office or department, or increasing the salaries of those now in office, or their successors, except as provided by acts passed by the legislature.’

On the thirty-first day of December, 1869, the common council adopted a resolution which provided that from and after January 1, 1870, the salary of police justices should be $10,000, payable in equal monthly installments. The claim of the plaintiff is that by this resolution his salary became lawfully fixed at the sum of $10,000. Whether or not this claim is well founded depends upon the construction to be given to section 26 of the act of 1860. Did that section empower the common council to increase the salary of police justices from time to time or only once? We are of opinion that it authorized but one increase, and that by the increase made in 1862 the power of the common council to increase the salary was exhausted.

By the act of 1860 additional duties were imposed upon the public justices; and, in view of that circumstance, and to adjust the salary to the new state of things, the power to increase was conferred. It was not a power which, to promote the public good, or to carry out a definite public policy, was required to be continuously possessed, or repeatedly exercised. The language of the statute seems to have been carefully selected; and, if it had been intended to lodge a power in the common council liable, from continuous importunities of office-holders, to be abused, we might expect to find the intent expressed in more appropriate and unmistakable phraseology. It is delegated power, which should not be extended by construction, implication, or doubtful inference. There was authority to make the salary commensurate with the public service required, and this was to be exercised, not piecemeal, but once for all. Therefore the resolution for a further increase of the salary on the thirty-first of December, 1869, was unauthorized, and was also in violation of section 11 of the act of 1869, above quoted, and the plaintiff cannot, therefore, base his claim upon that resolution alone.

But the claim is made that the legislature approved and ratified the increase of the salary of police justices to $10,000, and that, therefore, plaintiff's claim to the increase is well founded.

In chapter 383, Laws 1870, p. 888, it was enacted as follows: ‘The mayor and comptroller are hereby authorized to fix the salaries of the civil justices of said city (and any or either of them) as they may deem the legal business of the respective districts to justify, not exceeding the salary now paid to the police justices of the city.’ The civil justices were then receiving a salary of $5,000, and, in pursuance of that act, the mayor and comptroller fixed their salary at $10,000, and it was held that thereby that sum became the lawful salary. Quinn v. Mayor, etc., 63 Barb. 595; S. C. affirmed in this court, 53 N. Y. 627.It is contended that the legislature must be presumed to have known that the salary of police justices had been increased to $10,000, and to have intended to confer authority to make a like increase to the civil justices, and that thus it ratified the salary then allowed to the police justices. We cannot assent to this claim. It is a rule of construction that the legislature is presumed to have knowledge of the facts directly involved in its acts; but...