73 A.D. 81 | N.Y. App. Div. | 1902
Plaintiff seeks to recover the sum of $512.50, with interest, as «salary which became due to him as an alderman of the city of Rochester during part of his term.
We think he should be allowed to recover.
The facts involved in the controversy are few and very simple. Plaintiff was elected as an alderman of one of the wards in the defendant in November, 1899, and qualified and entered upon the
Defendant’s counsel, in support of his contention that the act of 1902 was constitutional and valid and deprived plaintiff of any claim, to salary, has, with much industry, called to our attention a large-number of cases adjudicating the right of the Legislature to change the salary or term of an office such as plaintiff held even after the. incumbent has been elected thereto. The principles laid down in such cases are too well established to permit of dispute or even, doubt. They are conceded by the plaintiff in this case. There is. no qnéstion but that the Legislature, after plaintiff was elected to the office of alderman, would have had the right to reduce or
The act under which plaintiff seeks to recover did not give any salary for a period preceding its passage. If it had, clearly it would have attempted to give a bonus or gratuity and would have been void.
Defendant’s counsel argues that even though relating to the future it still gave such a gratuity, and that there is no considerar tion as between plaintiff and defendant by virtue of which he may enforce its provisions. In support of this contention, Ave find the learned counsel stating in his brief: “ The plaintiff was bound to accept the office to which he was elected, and became obligated to serve without compensation during the full íavo years for which he was elected.” And again : “ On the 13th day of November, 1899, he (plaintiff) signed, swore to and filed with the Clerk of the City of Rochester his oath of office, wherein he solemnly voAved, covenanted and swore with the people that he would faithfully discharge the duties of the office of alderman for the term for which he had been elected.” In line with the idea thus set forth, it is argued that, by accepting an election as alderman and by taking the oath as such, plaintiff became absolutely bound to and with the city of Rochester to serve as one of its aldermen for the full term for which he was elected; that at the time when the act of April 25,1901, Avas passed, he could not resign from or relinquish the office, and, therefore, under no possibility could be regarded as having continued in the office and to discharge the duties thereof in reliance upon the act which granted him salary. If this reasoning could be sustained, we think it Avould have much force in leading us to the conclusion that the salary granted to plaintiff was a gratuity and the act void. We are, however, unable to adopt the reasoning. While public policy may require that a person elected to office should continue to discharge the duties thereof for its full term, and while laws have from time to time been enacted visiting a punishment or
We, therefore, have it that at the time when the act granting the salary was passed, plaintiff had the right at any moment to resign and retire from the office which he held. Under such conditions the act was passed giving a compensation for the discharge of the duties of the office. Knowing of these provisions, as he must be presumed to have known, plaintiff continued in office and to perform the duties thereof until his term expired. We think it must be held that in so doing lie relied upon and took into consideration and account the provisions of the act.
It is conceded in behalf of defendant that if a salary had been attached to this office at the time plaintiff secured an election thereto any portion thereof which had accrued could not be taken away from him by a subsequent legislative act. Keeping in mind the right of plaintiff at any time in the midst of his term to retire from office, we do not see that the legislation in question stands upon a much different basis. In the case first assumed it might be argued that plaintiff would have sought the office as quickly and readily though no salary was attached. Nevertheless, having been elected to the office while it carried with it a salary he would have
We think that the cases cited in behalf of the defendant may all be readily distinguished upon their facts from this one. It is impossible within reasonable limits to review them all. We shall simply refer to two which seem to be especially relied upon by counsel.
In Healey v. Dudley (5 Lans. 115) the court impliedly held that a board of supervisors had the right to pass a resolution rescinding a former resolution granting $500 back pay to a county judge. This case, however, fairly involved and rested upon the proposition that the original resolution rescinded was absolutely unconstitutional and void, and in this and other respects the case radically differs from the one presented to our consideration.
In Nash v. White's Bank of Buffalo (105 N. Y. 243) the Legislature, by enactment and repeal of other acts, destroyed plaintiff’s right to recover certain penalties imposed upon banks for taking unlawful interest. It is manifest, however, that the abatement of penalties inflicted by way of punishment for violations of law is very different, even though it destroys a cause of action vested in a private individual, from the impairment of vested rights resting upon contract express or implied.
In accordance with these views judgment is ordered for the plaintiff for the sum of $512.50, with interest thereon from January 1, 1902, together with costs.
McLennan, Spring, Williams and Davy, JJ., concurred.
Judgment ordered for the plaintiff for the sum of five hundred and twelve dollars and fifty cents ($512.50), with interest thereon from January 1, 1902, together with costs.