It is agreed that there can be no recovery by those of the petitioners who failed to protest. (Quayle v. City of NewYork, 278 N.Y. 19; Matter of Shevlin v. LaGuardia, 254 App. Div. 922; affd., 279 N.Y. 649.) *Page 224
It is also agreed that there can be no recovery by those of the petitioners who accepted appointment at a lower salary pursuant to the certificate of the Budget Director. (Matter ofDobrovolny v. Prendergast, 219 N.Y. 280.)
I cannot agree, however, that there can be a recovery by the remaining petitioners in disregard of the resolution by the city of New York reducing the salaries pursuant to sections 67 and 68 of the charter.
The question presented here is whether the Board of Estimate has the power, between the times of adopting the budget, to reduce the salaries of the clerks of the Municipal Court.
No issue affecting the independence of the judicial branch of the government is involved, since there is nothing to prevent the city from reducing the salaries of the judges of the Municipal Court. (Haggerty v. City of New York, 267 N.Y. 252.) The Legislature has provided expressly: "Salaries of such clerks shall be fixed by the board of estimate and apportionment of such city." (Laws of 1929, ch. 235.)
No other prohibition, statutory or otherwise, existing, we are thus directed to the question whether the language of section 68 of the charter of the city of New York permits the Board of Estimate of the city to make this reduction. Section 68 of the charter provides:
"§ 68. Creating, abolishing or modifying positions and grades. The board of estimate may at any time, subject to the provisions of this charter and of the civil service law and except as otherwise provided by statute, create, abolish or modify positions and grades of persons paid from the city treasury."
This statute must be enforced according to its terms. There is no ambiguity in its language.
Clearly the language is sufficiently broad to authorize the action of the Board of Estimate. It is conceded that such action might be taken at the annual making of the budget. Section 68 expressly gives power to "modify positions" "at any time." This language applies to the positions *Page 225 held by these petitioners. The authority sought by the city, namely, to control the expenditures from its own treasury, consists of nothing unusual but is the ordinary authority possessed by every corporation, large or small. It is well within the principle of home rule, and the court might almost take judicial notice of the efforts which the city has been making over the course of the years to acquire the elementary right to control its own expenditures. Also, the city has been granted a similar right by the Legislature on many special occasions prior to the adoption of this new charter. For example, statutes gave the right to the city to rearrange and reclassify salaries during the recent financial emergency, even though they had been fixed previously in the budget. This power, then granted to the city, has been continued by section 68 and has eliminated the necessity for the city to apply to the Legislature for such an enabling act on special occasions, because section 68 explicitly provides that such power may be exercised at any time.
It is urged that the phrase "modify positions and grades of persons" does not grant authority to change salaries. The dictionary defines "position" as including employment. It requires no citation of authorities to demonstrate that one of the most important attributes of employment is the amount of compensation. Furthermore, section 68 ties up the positions and grades referred to with the compensation paid from the city treasury. If that is altered, certainly the employment or position is modified to the extent of the change in salary. But it is further urged that even if this power exists it must beconfined to budget-making time. A complete answer, however, is that the power is expressly given to be exercised "at any time." It is further urged that if this elasticity in reference to the details of the budget is permitted to the city of New York then there will be nullified the salutary restraint arising out of the adoption of the budget. This overlooks the fact that the important consideration in the making of any budget is the total amount which will be required by that budget. Along with this must go hand in hand a certain amount of *Page 226 elasticity with reference to the details in order to take care of various contingencies which are continually arising in connection with the operation of the government of the city of New York. The argument that to give to the city the power to deal with the details of the budget during the fiscal year violates some fundamental principle or policy of budget making ignores the fact that the courts have long upheld the same power of department heads to reduce the salaries of their employees whenever they see fit, provided only that they do not violate some express statutory prohibition. (Cf. Thomas v. City of New York,263 N.Y. 402.) The effect of section 68 is to vest now in the Board of Estimate a power no greater than that which has always been recognized to belong to the heads of departments. Furthermore, other provisions of the charter confirm this construction of section 68 in reference to the power to deal with positions and grades. Sections 123, 127 and 128 furnish power to the Board of Estimate to transfer appropriations, provided the total amount of appropriations is not exceeded. Thus, sections 123, 127, 128, 67 and 68 evidence a design to make the budget elastic within the confines of the total amount appropriated.
It has been suggested that the city is without power to fix the salary at so unreasonably low a figure that the office created by statute would be destroyed for all practical purposes. But petitioners do not contend that such is the present case.
It follows that the order appealed from should be modified and the petition dismissed as to all.