Kip v. City of Buffalo , 27 N.Y. St. Rep. 52 ( 1889 )

Beckwith, C. J.

This is an issue of law, raised by a demurrer to the complaint. The demurrer is upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. The plaintiff, by the allegations of his complaint, seeks to recover a judgment against the defendant for his salary as secretary of the civil service commissioners appointed by the mayor for the city of Buffalo. The contention on the part of the defendant is that the mayor had not power to bind the city for the payment of the plaintiff’s salary. The charter, (title 5, § 9) provides that a contract by which a liability shall be attempted to be created against the city in excess of the annual appropriation for any department shall not be binding on the city for the amount contracted to be paid which is in excess of the appropriation. Section 8 of chapter 410 of the Laws of 1884, which is not an amendment of the charter, but a general law, directs the mayor to “employ suitable persons” to conduct the inquiries and make the examinations prescribed as to the fitness of persons applying to enter the civil service of the city. It must be presumed that the legislature intended the statute to have effect, and it is considered that a power given by statute carries with it every incident absolutely necessary to give it operation. 1 Kent, Comm. 464. Such construction ought to be put upon a statute as does not suffer it to be eluded. Thompson, C. J., in People v. Insurance Co., 15 Johns. 381. When, therefore, we find the statutes, called the “Civil Service Acts, ” directing the mayor to employ suitable persons, we conclude that they impliedly authorize him to agree upon a reasonable compensation for their services. The civil service acts are general statutes, operative on all the large cities of the state. Their mandate is directed to the mayor, in his official capacity, as the executive and agent of the city. As chief executive of the city, the mayor, in employing the suitable persons mentioned in the statute, enters into the contract on behalf of the city, and promises that the city will pay. Such power must therefore be deemed to be exercised with reference to the capacities of the municipal corporation, and the modes prescribed by the legislature for the exercise of its powers. The power to contract for compensation was, consequently, limited by the provisions of the city charter respecting the raising of moneys for the public expenditures, and the disbursement of the same. We think, therefore, that, within the limitations of the charter as to the expenditures of the public moneys, the mayor had power to contract with the plaintiff for a compensation for his services.

The employment of the plaintiff as secretary of the civil service commission was treated by the mayor as belonging to his department of the city government. In the spring of 1887, according to the directions of the charter, when the time came to make up the estimates of the amount of money to be raised by taxation in order to carry on the city government, he sent to the comptroller an estimate of the sum required in order to secure the execution in this city of the civil service acts. He put the sum at $1,000. The comptroller included the same sum for that .purpose in his estimate sent to the common council. The common council, on revising the estimates, reduced the sum for the civil service to $50. An allowance was therefore made for the civil service. But the common council fixed the estimate for the mayor’s department at $6,825. It is alleged in' the complaint that at the time the mayor employed the plaintiff there was a balance remaining of this fund, unexpended, of $395.18, and at the end of the fiscal year a balance of $201.38. The plaintiff was appointed secretary, at a salary of $50 a month, on the 20th day of September, 1887. The balance in the fund for the mayor’s department was at that date sufficient to meet the obligation incurred by the employment of the plaintiff until the end of the fiscal year,—the 31st day of December, 1887. The common council estimated the expense of executing the civil service acts at $50; but I do not understand the charter to mean that an expenditure for a particular object shall not exceed the itemized sum set down therefor in the estimates of the comptroller, or of the common council. The item is the common council’s estimate of the probable expense. It may be too much, or too little. The .charter provides, in substance, that contracts, made in any department of the city government, for an amount in excess of the sum appropriated for the department, shall not be binding on the city, beyond the balance remaining to the credit of the department. The charter does not further annul contracts that are in excess, but provides that the excess may be recovered of the members of the common council. I understand the charter to mean that the city shall not be bound by any contract, though within the objects of the department, so far as the liability contracted is in excess of the appropriation. The plaintiff was not employed for any definite or stated period. , He was simply appointed by the mayor to the position of secretary, at a salary of $600 per annum, payable in equal monthly payments. The plaintiff and the mayor were bound to take notice of the provisions of the charter when they were contracting about the salary to be paid by the city; to take notice that the fund in the mayor’s department could not be exceeded, and that a contract for services to be performed beyond the expiration of the fiscal year could not be legally made. The contract, by its terms, did not necessarily extend the employment beyond the fiscal year, and was therefore not void for that reason. But for the period of the employment, from the 20th of September to the end of the fiscal year, the balance remaining in the fund appropriated for the mayor’s department being sufficient, we think the contract was valid.

Mr. Wilcox, in his argument, urged the court to put its decision on the broad ground that the civil service acts empowered the mayor to contract for their execution, and that such a contract, entered into by him, created a liability upon which judgment could be recovered against the city, independent of the question whether any fund had been provided for the purpose of paying and defraying the salaries and expenses attending the execution of those laws. We agree in the opinion, though not involved in the decision of the issue of law raised by this demurrer, that the mayor cannot bind the city in that manner. If the civil service acts impose a new burden of expense on the city, it is the duty of the common council to provide for it by taxation, and their neglect to perform their d uty in that respect will not give to any city officer power to bind the city by contract in any mode different from that provided in the charter. The civil service acts are not so repugnant to the provisions of the charter that the latter can be said to be superseded for the sake of the civil service.

The complaint showing power in the mayor to contract with plaintiff for his services as secretary to the civil service commission, and to pay him a fair compensation, and showing that the fund in the mayor’s department, unexpended at the date of entering into the contract with the plaintiff, was sufficient for the payment of the compensation agreed upon until the end of the fiscal year, we think a cause of action was stated, and, accordingly, that the demurrer must be overruled.

Titus, J., concurs.