243 A.D. 210 | N.Y. App. Div. | 1935
Lead Opinion
The applicant, in 1921, was duly appointed to the position of assistant secretary to the Transit Commission after he had duly qualified therefor in accordance with the Civil Service Law and rules. The petitioner claims his salary for the last half of September, 1934, and asks that a mandamus order issue directing the comptroller of the city of New York to pay the same.
The Transit Commission is not a city body, but is a State body. (Matter of McAneny v. Board of Estimate, etc., 232 N. Y. 377, 390.) Section 2 of article Y of the State Constitution establishes a Department of Public Service, enumerated among other civil departments of the State in the State Departments Law. The State Public Service Law organized two State divisions, namely, the Public Service Commission, having jurisdiction outside the city, and the Transit Commission, having jurisdiction in the metropolitan district. Under subdivision 1 of section 5-a of the Public Service Law the Transit Commission has jurisdiction within the city of New York over railroads, street railroads, and stage or omnibus lines. (Public Service Law, § 5-a.) The Transit Commission exercises in respect to the aforesaid utilities regulatory powers of the State delegated to it by the Legislature under the Public Service Law, the Railroad Law, the Transportation Corporations Law, and the New York City Grade Crossing Elimination Act. The Transit Commission is charged with the supervision and administration of contracts entered into by the city under and pursuant to the Rapid Transit Act, and with the duty of preparing a plan for the unification of transit lines in the city of New York. The Transit Commissioners are appointed by the Governor of the State, by and with the consent of the Senate, and may be removed by the Governor. The Transit Commission is expressly empowered to employ officers, clerks, inspectors, experts and employees, and to fix their compensation. By legislative enactment, approved by the Governor on August 24, 1934 (Laws of 1934, chap. 900), and in effect October 1,1934, the Transit Commission was authorized and directed by amendment of the Public Service Law to provide for the periodic inspection of all omnibuses operating or located within the city of New York, carrying passengers for hire, and having a carrying capacity of more than seven persons. The operation of any buses on or after October 1, 1934, not prominently displaying a certificate evidencing such inspection within the period of the preceding four months, is prohibited by the act. Upon the passage of chapter 900 of the Laws of 1934 it became necessary to make a complete inspection in order that such omnibuses might be operated on or after October 1, 1934. Therefore, on September 12, 1934, the Transit Com
It appears from the foregoing that the Legislature determined that certain work should be done, and created the Transit Commission to do it. The Legislature, under its taxing power, required the board of estimate and apportionment of the city of New York to appropriate the necessary money to carry out the work. (Gubner v. McClellan, 130 App. Div. 716.) The Legislature authorized the Transit Commission to determine the necessary amount and to certify the same, and specifically required the board of estimate to appropriate such amount, “ without revision or reduction and without the imposition of any conditions or limitations by such board,” and declared such appropriation to be a ministerial act on the part of the board of estimate. In Matter of McAneny v. Board of Estimate, etc. (232 N. Y. 377, 386) the Court of Appeals stated that “ The purpose of this provision in the act is obvious. It is to prevent the board of estimate and apportionment from defeating the purposes of the act by withholding appropriations.” On September 28, 1934, the board of estimate, in response to a previous requisition from the Transit Commission, appropriated the sum of $205,500 to cover all salaries, including that of the appellant, and the expenses of the Transit Commission, for the period covered by the payroll involved in this proceeding. The sum thus appropriated was more than sufficient to cover all salaries and expenses of the Transit Commission. On September 28, 1934, the Transit Commission submitted to the comptroller of the city of New York the payroll, duly certified by the State Civil Service Commission, covering, among other items, the salary of the appellant and the other thirteen inspectors of buses for the last half of September, 1934. Under section 14 of the Public Service Law, above quoted, it thereupon became the duty of the comptroller to audit and pay the salaries and expenses of the Commission chargeable to the city upon vouchers therefor. In spite of this requirement, the comptroller held the payroll, without questioning or returning the same, until one of the bus inspectors, Herman Lehman, whose name appeared on the payroll, brought mandamus proceedings to compel the comptroller to audit and pay the amount due him as shown by the payroll. On Oetober 19, 1934, the comptroller returned
The order appealed from should be reversed, with twenty dollars costs and disbursements, and the peremptory order of mandamus granted, with fifty dollars costs, directing the comptroller of the city of New York to pay the salary of the petitioner as certified by the Transit Commission.
Martin, P. J., O’Malley and Townley, JJ., concur.
Concurrence Opinion
(concurring in result). I am unable to concur in the opinion of Mr. Justice Merrell because it decides that chapter 637 of the Laws of 1932 did not extend to the Transit Commission. It seems to me that the Transit Commission was included within the terms “ officers and employees performing or engaged in state or county business or functions, whose compensation, wholly or in part, is paid out of the city treasury.” I concur in the result, however, upon the ground that chapter 178 of the Laws of 1934, by transferring from the board of aldermen to the board of estimate and apportionment of the city of New York the power to fix salaries and at the same time omitting all reference to persons performing “ State ” functions, by implication repealed chapter 637 of the Laws of 1932. Thereafter only the salary of persons “ performing or engaged in city or county business or functions ” was subject to the control of the board of estimate and apportionment.
Order reversed, with twenty dollars costs and disbursements, and motion granted, with fifty dollars costs. Settle order on notice.