71 A. 906 | Conn. | 1909
The plaintiff has been a member of the defendant's police force since 1886. Prior to October 9th, 1907, and continuously up to the commencement of this action, he had been a policeman in Grade A, the highest of the four grades into which the patrolmen of the police *662 force are divided. By an ordinance fixing the salaries and compensation of the officers and men of the police department, in force on and before October 9th, 1907, policemen in Grade A were entitled to, and received, $2.90 per day. On that day the common council passed an ordinance, to take effect at the beginning of the city's next fiscal year, April 1st, 1908, and repealing as of that date all inconsistent ordinances, whereby the salary or compensation of each of the officers and each grade of patrolmen was increased. The salary or compensation thereby fixed for patrolmen in Grade A was $3.25 per day. The plaintiff, without reappointment, continued to serve as a patrolman in that grade after April 1st, 1908, and has demanded payment for such service since that date at the rate of $3.25 per day. The defendant has paid him at the old rate, $2.90 per day, and has refused to pay the balance claimed. The case is reserved for the advice of this court upon an agreed statement of facts.
The defendant's refusal to pay the increased compensation is based upon three grounds: first, because "both the board of apportionment and taxation and the common council of the defendant city failed and refused to make an appropriation for the police department sufficient to pay such increase in the compensation of members of the police department, and because it is provided by the charter of the city that no money other than that appropriated shall be expended for any purpose"; second, "because it is provided by said city charter that `no salary of any officer, employee, agent or servant of the town or city elected, chosen or appointed for a certain term, shall be increased or diminished by any action of the common council to take effect during said term'"; third, because "such attempted increase in the compensation of the members of the police department was prohibited by Article XXIV of the Amendments of the Constitution of the State." *663
It is the duty of the board of apportionment and taxation to determine, in February each year, the requirement of each department of the city government for the ensuing fiscal year, to apportion to each its required amount, and to lay a tax to meet the total requirement. The fact that in making its estimates for the police department this board failed or refused to make an appropriation sufficient to pay the increased compensation to the members of that department, is not conclusive of the plaintiff's right to recover. The purpose of placing the power of apportionment and taxation in the hands of a special board was to protect the taxpayers from unusual and unnecessary expenditures, not to cripple the different departments by depriving them of the means of paying the ordinary salaries and running expenses of their departments. The board of police commissioners have no power to fix the number of patrolmen in their department, or the pay of any of them. This power is given to the common council. After the number is fixed, the board appoints the required number, and can remove them only for cause, unless the number is reduced by the common council. The police commissioners cannot reduce or change the pay of the patrolmen. It clearly is not the intention of the charter that the board of apportionment and taxation should reduce the patrolmen's pay by apportioning to the police department an insufficient sum to provide the compensation fixed by law. When the number and compensation of the policemen have been legally established, it is the duty of that board to provide, by a sufficient appropriation and tax levy, for their payment. But if they fail to do this, the police commissioners may — the appropriation for their department being for a definite sum for general purposes — by cutting expenses elsewhere, reserve sufficient for the payment of the fixed salaries. If this is not possible, the common council may, under the charter, make a special appropriation to meet the deficiency, if there *664 is unappropriated revenue of the city sufficient to meet it, and if not, it can reduce the number of policemen, so that the appropriation already made will be sufficient to meet the salaries of those remaining. It is found as a part of the case that the board of apportionment and taxation failed and refused to make an appropriation sufficient to pay the increased salaries in the police department, provided for in the ordinance of October 9th, 1907, and that the common council has not since reduced the number of policemen, or made a special appropriation for the purpose of paying the increase in salaries and compensation. But it is not found that, at the time this action was brought, there was not remaining, of the appropriation which was made, sufficient to pay the increase on all salaries then due. Less than two thirds of the fiscal year had then passed, and presumably a large part of the appropriation for the police department then remained unexpended. It does not appear, therefore, that the city was not then in funds, appropriated for the purpose, sufficient to pay the plaintiff's demand. Upon the facts found, therefore, the defendant's first defense does not justify its refusal to pay the balance claimed, if the same was legally due.
We assume that the refusal of the board of apportionment and taxation to appropriate sufficient to meet the increase in salaries was because the board questioned, upon the grounds now urged by the defendant, the legality of that increase. If, as claimed, the common council, in repealing the former ordinance and by passing a new one establishing larger salaries or compensation for the policemen, acted in violation of the defendant's charter, or of Article Twenty-Four of the Amendments to the Constitution of the State, their action was void and the increase was invalid.
The construction and purpose of Article Twenty-Four of the Amendments to the Constitution received the attention of this court in the recent case of McGovern v. *665 Mitchell,
If the common council had power to enact the ordinance, it was, therefore, valid. The charter gives the common council the power to make, alter and repeal orders and ordinances relating to the salaries and compensation of all officers of the city. 15 Special Laws, pp. 493, 514, 515. That the legislature could confer upon the city the power of such local legislation is unquestionable. State v. Carpenter,
The Court of Common Pleas is advised to render judgment for the plaintiff.
No costs in this court will be taxed in favor of either party.
In this opinion the other judges concurred.