Phillips v. Mayor of New York , 1 Hilt. 483 ( 1857 )

INGRAHAM, First Judge.

The parties hereto have agreed upon a case containing the facts, which they submit to the court, pursuant to the provisions of the Code, for judgment thereon.

The plaintiff claims to recover against the defendants for compensation as a councilman for eight days, in May, 1857, and for the same services rendered by Jesse Mitchell during the same month — the latter claim having been duly assigned to the plaintiff.

The defendants refuse payment of these claims, upon the ground that the provisions of the amended charter of April, 1857, deprive the members of the common council of any compensation for such services after the same took effect.

By the acts of April 12, 1853, and June 14,1853, eouncilmen were substituted in the place of assistant-aldermen, formed a part of the common council of the said city, and were entilled tf the same compensation as the aldermen.

The case admits that compensation to have been duly fixed a four dollars for each day the alderman should sit in the common council.

The question then arises, whether the amended charter of 1857 deprives the members of the present common council of such compensation.

By section 44 of this charter it is provided that “ no member of the common council shall receive any compensation for his services as such member.” Laws of 1857, ch. 446.

If this provision is applicable to the members in office at the time of its passage, there is no authority for the payment of compensation to the members of the common council.

The previous part of section 44 refers to officers under this charter, and the defendants’ counsel contends that the whole,«feotion must be construed as relating to such officers. v

By the 51st section of the same act it is enacted that the mayor, aldermen, and councilmen, provided for in this act, are to be elected at the first election for charter officers to be held after its passage.

I have had occasion heretofore to pass upon the provisions of this statute in the matter of Devlin, so far as the same was applicable to the present common council, and have held that the powers therein granted were conferred upon the present members of that body, so far as they were required for the purposes of government, to prevent an entire cessation of the powers of legislation during the year. If this construction of the charter be correct, then it necessarily follows that the provisions of the 44th section also apply to the present members. Many of the provisions of this act have already been acted upon bj the common council, and the departments are now organized under those provisions.

If the term “ common council ” is confined to those hereafter to be elected, then no ordinances for the organization of the departments oould be passed, except by those who majr be elected under this charter; and if the act docs not apply to those now in office, there is no law excluding the present aldermen from the courts of Oyer and Terminer and Sessions, as provided in the 48tb section, because tbe law heretofore passed on that subject is repealed by that act.

The common council itself can only exist under this charter. All its powers must depend on the present statute, because, without organization under it, there is no law which recognizes such officers as council men; and .when the statute provides, in general terms, that no member of the common council shall receive any compensation for his services as such member, I see no way of avoiding the conclusion, that the same refers to the present as well as the future members. The former part of the section is not entirely confined to future legislation. It provides for the disposition of fees now or hereafter to be provided, and whenever the statute is intended to apply to officers thereafter tome chosen or appointed, it is express in limiting its operation to “officers under the charter,” or “provided for by the act.”

It is said that the act allowing such compensation to the members of the common council is not repealed. The provision of the 44ih section, if applicable to the present members, would be a repeal of that statute, even if no express repeal was contained in the act: but, by the 54th section, all laws inconsistent with the act are thereby repealed, and if the provision above referred to applies, then the statute would be inconsistent with the new charter, and would be expressly repealed thereby.

The 55th section of the act, which provides that it shall take effect on the 1st of May then ensuing, also shows'that the legislature intended that its provisions should be operative in some parts at that time.

It is contended also, on the part of the plaintiff, that the amended charter of 1857 is a local bill and embraces more than one subject, which is not expressed in its title, and is therefore unconstitutional.

The provision of the constitution is, that no private or local bill shall embrace more than one subject, and that shall be expressed in the title. Art. 8, § 16.

I am not prepared to admit that the act in question is either a private or a local bill. It can in no sense be called a private bill. It is intended to regulate tbe government of a city containing a large portion of tbe population of the state, authorizing the city authorities to exorcise powers of legislation, which, without it, would belong to the legislature. A private act is one of an entirely different character, relating to private and not public interests, and to individual cases, and not to a whole community.

Nor do I think such an act, devolving upon others the powers which the legislature possesses for the purposes of government, can be called a local act. In the case of Connor v. The Mayor, &c. (1 Selden, 285), an act was under consideration providing for the salaries of certain officers elected in the city of NewYork, to which the same objection was made as in the present case. Judge Foot, in his opinion, referring to this objection, says, “In m3 opinion, the act is neither private nor local.”

And again, he says, “Regulating the amount and manner of paying the officers, or a given number of the officers of a county of this state, for their official services, when such services are rendered in and form part of the administration and execution of the laws of this state, and affect the citizens thereof who come within their range, can neither be private nor local in the view contemplated by the constitution.”

With much greater force may these remarks be applied to a statute providing for the government of a large portion of the territory and population of the state, delegating powers of legislation and authorizing the passage of laws as well as the administration of them, which in their operation affect all the citizens of the state, who cither in their persons come within their range or whose property is within the limits of that jurisdiction.

Nor do I think the provisions of the statute can be said to be of more than one subject. The act was intended to provide or add to tbe charter of the city. The previous charters had conferred on tlie aldermen the right to sit as judges of the Oyer and Terminer and of the Sessions, In framing the now charter, as ■well as in the act to amend the charter of 1849, passed 12th of April, 1850, it was deemed advisable to prohibit the aldermen from any longer exercising that power, and it was proper and consistent with, the other provisions of that act, and a necessary part of the new system contemplated therebjr, to prohibit those who formed a portion of the city government from exercising any longer such powers. The further provision, that the remaining judge in those courts should hold the same without the aldermen, was only necessary as declaring what would follow from the prohibition.

If, however, there was any doubt upon this question, it is not necessary to declare the whole act void. So much of it as is consistent with the title could be sustained. Such was the decision of the Supreme Court of the second district in The Town of Fishkill v. The Plank Road Company (22 Barb. S. C. Rep. 634), in^which the first section of a statute was held to bo valid, and tÜÉTresidue to be void, on account of the defect in the title.

It was also urged that the provisions of the fifty-second section brought the statute within the constitutional objection. That section provided a punishment for bribery offered to or committed by an officer of the city government. It was necessarily connected with the city charter, to preserve the purity and integrity of its members or officers, and should not, in my judgment, be considered as a subject separate from, or unconnected with a city government.

It can hardly be necessary to discuss the question, whether the legislature can take away the compensation of an officer during his term. In Warner v. The People (2 Denio Rep. 272), Judge Bronson says, “ I do not doubt that the legislature may regulate and reduce or take away the fees of the officer.” And, in Connor v. The City of N. Y. (2 Sandf. 355), such right to alter or take away the compensation of a public officer is maintained.

The plaintiff also claims that the fifty-fourth section of the amended charter declares, that no right, accrued before the act took effect, should be prejudiced thereby. This did not apply to prospective compensation not then earned. So far as the plaintiff had rendered service, so far his right to compensation had accrued, but no such right can be claimed before the service Was rendered.

The cases aboye referred to show that the right to perform such service may be taken away, and it must of course follow that there was no accrued right in the plaintiff by which he could insist on pay for discharging his duties, contrary to the provisions of the statute.

Judgment for the defendants.