10 Abb. N. Cas. 418 | N.Y. Sup. Ct. | 1881
No formal charges were made against the relator, and no opportunity was afforded him to be heard before the commissioners, as that was provided for by section 38, chapter 335, of the Laws of 1873, before the resolution for his removal was adopted ; and if the case is governed by the provisions contained in
But while such were the requirements of this provision of the law, it was within the authority of the legislature either to supersede, modify or repeal it. As the right was one which was derived from the exercise of legislative authority, it was as much within the power of that body afterwards to change, modify or abrogate, as it was in the first instance to enact it (Smith v. Mayor, 37 N. Y. 518).
And such a change afterwards made in the law as justified the action taken by the commissioners is relied upon in support of their proceedings. This is claimed to have been made by chapter 521 of the Laws of 1880, and the resolution under which the relator was removed was adopted under the authority of this act.
The leading object of the act seems to have been to provide for retrenchment in the expenses of the local government of the city, and for that purpose the salaries of various officers were reduced, and then it was declared to be the duty of every head of department in the next departmental estimate to reduce its aggregate expenses in such a manner that the entire sum to be paid for salaries and compensation of persons.employed in it should be at least ten per cent, below the fiscal year 1880. The duty enjoined by this section of the act was so broad as in terms to include all persons employed in the department, with certain specified exceptions. These were the heads of the department^ day laborers, teachers in schools, and the uniformed force of the police or fire departments. These exceptions tend to emphasize the general provisions contained in the section, and to require such a construction to be given to it as to include all persons employed in the department not mentioned in the exceptions so made (1 L. 1880, 733, § 3).
In the resolution by which the removal was made, it was stated to have been done in compliance with this act of 1880, and because the appropriation for the payment of the salaries of the clerical force for the yeai* 1881 was insufficient to pay those of all the persons employed upon such force. This statement disclosed the fact that the commissioners acted in subordination to the act of 1880 in removing the relator from his position. He has taken issue with the accuracy of this statement, and in his affidavit presented for the allowance of the writ asserted that no such insufficiency in the appropriation existed, and under the authority of section 3138 of the Code of Civil Procedure this statement requires to be considered in the disposition of the case. For by the terms of that section the case is not only'to be heard upon the return, but also upon the papers on which the writ was granted. It could not, however, have been the design of this extension of the law to allow the return to be controverted or, overthrown in its statements by anything contained in the papers presented for the allowance of the writ. As. the law previously stood, the return to the writ of certiorari was conclusive as to the facts contained in it (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437).
Bat if, from the statement contained in the affidavit, it should be assumed that the appropriation was sufficient to pay the entire clerical force employed by the department, the action of the commissioners would not, because of that circumstance, be unauthorized. They were not obliged to use up or exhaust the entire appropriation ; but it was still their duty, on the other hand, to reduce the expenditures of the department as far as that might prove to be practicable, and for that purpose, under the authority conferred upon them, they might remove subordinates whose services were not needed in what the department itself was required to accomplish. Upon this subject the authority which was created was broad and unqualified, and it allowed the commissioners to discharge such of their subordinates as could be dispensed with, for the mere purpose of reducing the expenses of the department. They may, in. this instance, have proceeded harshly in not giving the relator timely notice of what they intended to do. But as the statute has not made their action dependent in any respect upon the service of notice, its force and effect cannot be impaired by reason of the existence of these circumstances. The proceedings taken by them appear to have been warranted by the act of 1880, and for that reason they are required to be affirmed. But, under the circumstances disclosed, this should be without charging the relator with the costs of this review.
The facts, as they are presented in the cases of