People ex rel. Devery v. Coler

• Decision Date: 06 January 1903
• Parties: PEOPLE ex rel. DEVERY v. COLER, City Comptroller.
• Court: New York Court of Appeals Court of Appeals

173 N.Y. 103

65 N.E. 956

PEOPLE ex rel. DEVERY

v.COLER, City Comptroller.

Court of Appeals of New York.

Jan. 6, 1903.

Appeal from supreme court, appellate division, First department.

Application by the people, on the relation of William S. Devery, for a writ of mandamus against Bird S. Coler, comptroller of the city of New York. From an order of the appellate division (76 N. Y. Supp. 205, affirming an order of the special term denying a writ, relator appeals. Affirmed.

Judson S. Landon, Abram I. Elkus, and Carlisle J. Gleason, for appellant.

George L. Rives, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

CULLEN, J.

The relator was the chief of police of the city of New York, as that force was organized and constituted prior to the enactment of a statute passed on February 22, 1901, known as chapter 33 of the Laws of that year. By the first section of that act the official terms of the police commissioners then in office were abrogated, and all their powers and duties imposed on a single commissioner, to be appointed within 10 days after the passage of the law. By section 3 the office of chief of police of the city of New York was abolished, and his powers and duties granted to and imposed upon the police commissioner. By section 4 the commissioner was empowered to appoint a first and second deputy. Under this statute the mayor appointed a new police commissioner. The commissioner appointed the relator first deputy. The relator acted as deputy, but did not draw his salary as such. He insisted that the statute changing the organization of the police force and abolishing his office was unconstitutional and void. On this theory he contended that he was still in office as chief of police, and demanded of the respondent, the comptroller of the city of New York, his monthly salary. This demand having been refused, he sought to compel payment by a writ of mandamus. The application for the writ was denied at special term, and its action was affirmed by the appellate division. 76 N. Y. Supp. 205.

The learned counsel on both sides have waived all matters of practice, and have presented to this court, as the sole question for its determination, the validity of the statute of 1901. The constitutionality of the act is challenged on several distinct grounds. The objection is made that it is in conflict with section 16, art. 3, of the state constitution, which provides, ‘No private or local bills, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.’ The law, though public, is doubtless local, and therefore its enactment by the legislature fell within the restrictive provisions of the constitution. We think it very clear that full compliance was had with the constitutional requirements. The act contains but one subject,-the reorganization of the police force in the city of New York. There are various details dealt with by the statute, but they are details of the same subject. In the case of a statute providing for the original creation of a police force, it would not be denied that the same act could provide for the personnel of the force, the mode of appointment and removal of the various members, the powers and functions of its officers, and the control and management of the funds of the department. These would be not only proper, but necessary, details of the subject. In fact, the statute under which the relator held his office as chief of police not only dealt with all these matters, but with an innumerable variety of other things, for it was the Greater New York charter. Nevertheless the law contained but a single subject,-the government of the city of New York. It is plain, therefore, that the statute before us contains but one subject, and the only question that can arise is whether the title is broad enough to include all the matters dealt with by the act. On this constitutional provision the general rule is: ‘It is sufficient if the title expresses substantially the subject. It is not necessary that the most perfect expression should be adopted. The object of the requirement of the constitution is that legislators and the public may be informed by the title of the general nature of the provisions proposed to be enacted, and to prevent deception.’ In re New York & B. Bridge, 72 N. Y. 527. Judged by this standard, the title of the law is not only sufficient, but possibly unnecessarily elaborate. It seems to have been drawn with the constitutional provision constantly in the mind of the draftsman, and with the intention that, at whatever cost of prolixity, the constitutional mandate should be complied with.

The next attack on the validity of the statute is that it violates the federal constitution, in that it impairs the obligation of a contract. At the time of its enactment the relator had been a member of the police force of the city of New York for 23 years. During all of this period there had existed a system of pensions for the police of the city of New York, in the benefits of which the members of the force were, in certain contingencies or after certain length of service, entitled to share. This system was created by statute, and to its funds was contributed a deduction of 2 per cent. from the salaries of the members of the police, though the fund was also largely derived from other sources. The latest provisions on the subject are contained in sections 351 to 357 of the Greater New York charter (chapter 378, Laws 1897). Under these, the relator, if he remained chief of police, would at the expiration of a term of 25 years' service be entitled to be retired on an annual pension of $3,000, and the charter provides: ‘Pensions granted under this section shall be for the natural life of the pensioner and shall not be revoked, repealed or diminished.’ The claim of the relator is that the statutory provisions for pensions out of a fund proceeding in part from deductions from his salary constituted a contract with him, the obligation of which is violated by the abolition of the office which he held, since by ceasing to be a member of the police force he loses his right or opportunity to obtain a pension. I shall not discuss the question whether the pension laws constituted in any respect a contract between the state or the city and the members of the police force. It is to be borne in mind that this proceeding is not brought to enforce any right or interest of the relator to or in the pension fund, but for his salary as chief of police. Assuming for the discussion only that his right to a pension is contractual, the argument in his behalf is substantially that because the legislature could not deprive him of his right to a pension, and because it was necessary, in order to obtain a pension, that he should remain in office till he reached the time for retirement, therefore the legislature could not abolish his office, and he is entitled to be continued in office and to receive the salary thereof until his retirement. I think the conclusion does not follow from the premise. The statute does not purport to abrogate any right of the relator to a pension. If he has vested rights beyond the power of legislative interference, he may assert them in an action to recover his pension or for damages. Even in the case of private persons a master may discharge his servant, though in violation of his contract to employ the latter for a definite term. The servant cannot insist that he shall continue in the master's employ, but the master remains liable to the servant for damages for his breach of contract. Practically, the relator is her insisting on the specific performance of what he claims was his contract with the city of New York, entered into under legislative sanction. But there is no right to the specific performance of such a contract, and a law which prohibits or renders impossible the specific performance does not impair the obligation of the contract. This is clearly pointed out by the late Justice Miller, of the supreme court of the United States, in his lectures on the Federal Constitution (page 541): ‘It is needless here to advert to the difference between specific performance and damages for nonperformance. In a very limited class of cases only are contracts capable of being specifically performed by the court, such as the conveyance of real estate, and some others, where the judicial power can take hold of a man and compel him to do what he has promised. In much the larger number of cases at law the remedy is by way of damages in a money judgment for not performing the thing promised. A state statute or law that impairs the obligation of a contract must be one which takes away the remedy for its violation.’ There is no claim made that the relator's right to the statutory compensation while in office prior to retirement is contractual, and beyond the power of the legislature to alter or take away. The authorities are conclusive to the contrary of such a doctrine. Conner v. Mayor, 5 N. Y. 285;Butler v. State of Pennsylvania, 10 How. 402, 13 L. Ed. 472; Mechem, Pub. Off. § 857. The relator's position is not that the salary could not be taken away from him, but that he could not be deprived of the office, and his claim to the salary is the mere incident of his claim to the office.

There is a further answer to the relator's claim. If we assume that the relator's right to a pension is contractual, and also assume that the pension scheme was such that it was not possible for the legislature to subsequently abolish the relator's office without violating that contract, does it follow that the statute now before us is void as contravening the federal constitution? Not at all. All this would simply prove that the original legislation establishing the pension scheme was void so far as it led to any such result. Nothing is better settled in our jurisprudence than that one legislature cannot bind the hands or...