20 N.Y.S. 51 | The Superior Court of the City of New York and Buffalo | 1892
Lead Opinion
The relator is one of the police commissioners of the city of Buffalo. His salary was fixed under and in pursuance of chapter 379,. Laws 1892, adopted by the legislature and approved by the governor of the state April 27, 1892. This act provides that “the commissioners of police shall receive such annual salary as may be fixed by the common council at a joint session thereof, and the said common council shall immediately upon the passage of this act determine the amount of such salary. ” This act is an amendment of section 184, Laws 1891, approved by the governor March 27, 1891,
This history, and these illustrations, serve to show that the people of all constitutional governments are extremely solicitous and jealous of this power, and have at all times hedged it about by carefully expressed limitations. Consequently it follows that the right of its exercise by an executive must always be supported by plain and undoubted authority. It has of recent date been the gradual and growing belief that this power is wisely placed in the executive head of municipal authority, not as essential to preserve an equilibrium of governmental power, but for almost the sole purpose of a check upon corrupt and hasty action and ill-considered legislation. This is not a new idea, but it was not accepted until experience has shown it to be, usually, for the best interests of the people in the government of cities. Franklin long ago stated one reason for the lodgment of this power in an executive. “A single man may be afraid or ashamed of doing injustice; a'bodv is never either one or the other, if it is strong enough. It cannot apprehend assassination, and, by dividing the shame among them,- it is so little a piece that no one minds it.” While, for these and other reasons, it is doubtless the tendency of modern legislation to bestow this power upon the executive head of municipal
This brings us to an examination of the statute under which the power here exercised is claimed to exist. The charter of Buffalo is an entire scheme for the government of this city. It was carefully digested, and its authors conceived and carried out, so far as they possessed the ability, a complete and connected scheme. The legislative power is vested in a common council, consisting of two branches. The mayor is not a constituent part of such legislature. In nearly all matters this council acts as separate bodies. They act jointly in certain specified cases. Before the amendment which is the subject of examination here, there were two cases which called for joint sessions,—one for the election of a city clerk, (section 33,) the other to fill vacancies in certain elective offices, (section 374;) but in neither case had the mayor any control over its action; the action was final. So far as the present amendment is concerned, there is nothing expressed therein which gives the power of veto to the mayor in terms. It must therefore rest, if at all, in implication. It seems quite clear that the scheme contemplated by this charter was that original action should be taken by the board of aldermen, and then be passed upon by the board of councilmen, which action was to be subject to review by the mayor, and the scheme therefore provides for this, and nothing more. Where acts are passed upon by the mayor following this course, definite and precise provisions provide to whom such action shall go, and, if adverse to the council’s action, how the objection shall be specified, and what action they shall proceed to take, and what vote is essential to override the veto. It is conceded that there is no provision of law which in terms provides for a review of a joint action. But two claims are urged by appellant in answer to this defect: First. That the amendment is to be treated as an original act, and must be construed in view of the original statute; that as the amendment does not in terms take away the right of veto, and as it existed before the mayor had such right, therefore he possesses it now. Second. That even though there be no specific provision for the review of the ■veto, yet the power is not for that reason taken away. I am of opinion that the first view is not tenable; that it places a much too limited significance upon the word “determine.” This amendment'is mandatory. It reads, l“shall immediately determine the amount of such salary.” They could be icompolled by mandamus to assemble and act, and no provision is made, so far as I can find, for a review. On the contrary, I think the construction must be that it is alone the determination of the joint session which is contemplated and commanded; that as the charter provides, as we have seen, for a review of separate action, and none for a joint action before this amendment; that when the amendment was made the legislature contemplated a change of the system in fixing these salaries so as to conform to the theory of joint sessions as then existing in the charter, and, as no provision was made or contemplated for a review of joint action, and as the amendment does not provide for it, therefore it does not exist. Under the conditions here adverted to I think the correct construction to be that “ when a general intention is expressed, and also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception,” (Hoey v. Gilroy, 129 N. Y. 138, 29 N. E. Rep. 85; Bork v. City of Buffalo, 127 N. Y. 64, 27 N. E. Rep. 355;) and that such rule is to be applied here. These salaries can be fixed without the affirmative vote of a single councilman. Whiteside v. People, 26 Wend. 634; Cush. Parl. Law, §§ 412-414. If the construction contended for is to obtain, it
Like order in the case of Illig.
Dissenting Opinion
(dissenting.) The questions here raised are brought before this court by an appeal from an order of the special term granting a peremptory writ of mandamus, directed to the board of councilmen of the city of Buffalo, requiring said board to approve of a certain resolution adopted by the board of aldermen on the 23d day of May, 1892, directing warrants drawn in favor of the relator and Frank J. Illig for their services as police commissioners of this city, at the rate of $3,000 per annum. By chapter 105 of the Laws of 1891 the legislature enacted a new charter for this city. It became a law on the 27th day of March, 1891. The provisions making a general change in the city government did not take effect until the first Monday of January, 1892, but titles 7 and 8 of the act took effect and became operative at once. These titles, relating to the department of police, are substantially a re-enactment of chapter 634 of the Laws of 1880, as amended by chapter 359 of the Laws of 1883, establishing a police department for this city. The salary of the police commissioners was fixed by section 36 of the act of 1880, as amended by section 8 of the Laws of 1883, at $1,500 a year, and was the salary they were entitled to receive at the time the present charter went into effect. Ho sum was named which they should receive under the new charter, but section 474 provides that all appointive officers having a fixed and limited term of service, and holding office when this act takes effect, shall, during the terms for which they were appointed, receive the salary they were entitled to receive when the charter takes effect; so that the police commissioners were entitled to receive $1,500 a year as their lawful salary, because that was the amount they were receiving at the time the act took effect. By section 184 of the charter it is provided that the commissioners of police shall receive such annual salary as may be fixed by the common council by ordinance. It was evidently intended to make provision for fixing salaries by the city when by expiration of the term of office of the present commissioners such action would become necessary, as the provision of section 474, fixing salaries, is a temporary one. By section 17 it is provided that no change shall be made in the salary or compensation of any officer or employe during his term of service. This provision is found in the section conferring power upon the common council to enact ordinances, so it would seem from the plain reading of the charter that the police commissioners were to receive $1,500 a year salary, and no more; that the common council had the power by ordinance to fix the salary of the commissioners whenever the terms of the present commissioners should expire, but could not change the salary of the present commissioners, either to increase or diminish, and consequently was limited to the amount they were receiving at the time the charter took effect. It appears that the common council, by ordinance, passed and approved by the mayor on the 8th day of February, 1892, as provided by section 184 of the charter, fixed the salary of the police commissioners at $1,500
It is claimed that the legislature intended to authorize the common council to fix the salary independent of the mayor, and that it is the duty of the court to give effect to such intention. While that is true, it is clearly the law that the court cannot go outside of the act, and ask opinion of the individual members of the legislature, for the purpose of ascertaining the legislative intent. People v. Potter, 47 N. Y. 375. Such intent must be gathered from the act itself, taking into consideration what evil was sought to be remedied. It cannot be supposed that the legislature, in view of the fact that the charter represented the best sentiment of the people of this city, clearly expressed after months of deliberation by some of the most learned and patriotic of our citizens, intended to take from the mayor a power so wisely and safely bestowed upon him. The evil sought to be remedied is apparent from the charter itself. Too much power was vested in the common council and too little in the mayor. It was thought to correct supposed abuses existing under the old charter, by conferring more authority upon the executive branch of the city government; and this, in a great measure, was accomplished by the new charter. It cannot be said that the legislature, in the absence of express language, intended to undo, even in part, what had required so much labor and trouble to bring about. The legislative power of the city is vested in the common council, consisting of a board of councilmen and a board of aider-men. Section 4. But by section 18 “every ordinance and resolution of the common council, except resolutions making or approving appointments to office or place, designating the official paper, canvassing votes, adopting or altering comptroller’s estimates under section seventy of this act, shall be presented to the mayor before it shall be of force. If he approves it he shall sign it, but, if not, he shall return it, with his objections, to the city clerk, who shall lay the same before the board of aldermen at its next regular- meeting thereafter;” and the board shall proceed to reconsider it, and, if passed by the votes of two thirds of all the members elected, and the board of councilmen by a like vote pass it, such resolution will be of force notwithstanding the ob
As the same question is involved in the case of People ex rel. Illig, now pending before us, a like order should be made in that case.
White, J., did not sit.