The city has appealed from an order of the Appellate Division, issued under article 78 of the Civil Practice Act upon the petition of seventeen justices of the Supreme Court of the State of New York (hereinafter referred to as justices), which invalidated a resolution adopted by the Board of Estimate on November 2, 1939. The resolution provided: "That the Board of Estimate, pursuant to law, hereby reduces by two thousand five hundred dollars ($2,500) per annum, and fixes at $7,500 per annum the additional compensation payable to the justices of the Supreme Court for the counties within the City of New York, included within the First and Second Judicial Districts, to the Judges of the Court of General Sessions of the County of New York, and to the Surrogates and to the Judges of the County Courts of the counties within the City of New York, hereafter appointed or elected, including those elected upon the expiration of their present terms of office; * * *." The justices were all elected thereafter. The order appealed from directed payment of additional compensation to them at the rate of $10,000 per annum, that being the rate in effect before the adoption of the resolution.
Article VI, section 19, of the New York State Constitution provides, insofar as relevant here: "All judges, justices and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only *Page 530 that such compensation shall not be diminished during their respective terms of office." A similar provision is contained in article III, section 1, of the Constitution of the United States.
The question for our determination is whether the city possessed the power to make the reduction attempted. The matter of noninterference with the compensation of the judiciary, once it has been fixed by constitution or statute, has been a matter of extended consideration and discussion by the People since we became a nation. (See The Federalist, Vol. II, p. 107, McLean's edition, New York, MDCCLXXXVIII [Hamilton].) In discussing it there, Alexander Hamilton had occasion to say: "In the general course of human nature, a power over a man's subsistence amountsto a power over his will." (Emphasis in original.) It has been considered of such importance in this instance that the governing bodies of the Association of the Bar of the City of New York, of the New York County Lawyers Association and of the Brooklyn Bar Association have directed their respective presidents to indorse upon the petition herein the support by those associations of petitioners' demand, and that has been done. In view of that, we shall go more into detail in this opinion than would ordinarily be necessary.
Justices of the Supreme Court are State officers whose compensation must be prescribed by the Legislature, subject to the constitutional provision quoted, supra (Freund v.Hogan, 264 N.Y. 203). The Legislature may confer limited authority to pay additional compensation to such justices and that power has been recognized and exercised since 1852 (ThePeople v. Edmonds, 15 Barb. 529). No attempt under the first enactment delegating such power (L. 1852, ch. 374), nor under any subsequent act, looking toward a reduction of compensation, was ever attempted prior to the action complained of here in 1939.
Following the constitutional revision of 1925, there were added and amended sections 142 and 143, respectively, of the Judiciary Law. Section 142 was added in 1926 (L. 1926, ch. 155); section 143 was amended in 1928 (L. 1928, ch. 818).
The applicable portion of section 142 is as follows: "Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as they are now receiving therefrom * * * The provisions *Page 531 of this section shall apply to the justices now in office and to those hereafter elected or appointed."
Section 143, as amended in 1928, so far as pertinent here, provided: "The board of estimate and apportionment of the city of New York may provide for the raising by tax, and for payment to the justices of the supreme court resident in the first and second judicial districts, to the judges of the court of general sessions of the county of New York, to the surrogates and to the judges of the county courts of the counties within the city of New York, or to the justices, judges or surrogates of any of such courts, of such additional compensation as such board may deem proper."
The order of the enactment of the two sections is important. Section 142 continued the additional compensation the justices were receiving. Section 143 conferred power to provide further additional compensation. There was no provision for the reduction in the additional compensation when voted but only the provision in section 142 that that section should "apply to the justices now in office and to those hereafter elected or appointed." In other words, justices thereafter elected were to receive such additional compensation as justices previously elected might receive. To construe the language employed otherwise would disregard the idea of continuity clearly expressed in the words "shall continue" and would strike out the words "shall continue to receive" and write in their stead "shall receive". We may not rewrite the statute. To put the emphasis on the word "now" in the first half of the sentence of section 142: "The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed" and to disregard the expression of futurity in the word "hereafter" in the latter half is to fail to give appropriate weight to the requirement that individual words should be construed in their setting with their context as background. In this instance the appropriate interpretive section of General Construction Law is section 48, reading: "Tense, present. Words in the present tense include the future." That is the interpretation to be made "unless the general object of the statute, or the context of the language used, indicates that a different meaning is intended." (Matterof Hammond v. City of Fulton, 220 N.Y. 337, 342. See to same effect People ex rel. *Page 532 Martin v. Hylan, 213 App. Div. 519; affg. on opinion of CROPSEY, J. at Special Term; Matter of Moskowitz v. LaGuardia, 183 Misc. 33, affd. 268 App. Div. 918, affd. 294 N.Y. 830. ) Clearly section 142 applied not only to the time when the statute was enacted but to the future and until the statute was changed. The very language of the statute evidences the legislative desire to assure a non-discriminatory and anunreduced compensation to all the justices elected in the first and second districts. The statute is to be read as a continuing one which speaks anew during each year of its existence and thus provides for a continuance of additional compensation as it is fixed by the board. That additional compensation as and when provided must be paid, in the very words of the statute, to "the justices now in office and to those hereafter elected or appointed." There was thus to be acontinuance in the receipt of additional compensation by "those justices elected in the first and second judicial departments" — not by some of them.
The justices were classified only on the basis of residence. They were spoken of collectively and as a class, not as individuals. The language used referred to "justices, judges or surrogates of any of such courts" not to any of the justices, judges or surrogates of such courts. There was the provision that the section should apply "to the justices now in office and to those hereafter elected or appointed." There was to be equality between those in office and those to be incumbents later. There was to be no reduction in compensation for some. Section 143 was amended as a companion statute, to the 1928 amendment of section 142 but enacted first (L. 1882, ch. 40, § 1108; L. 1926, ch. 155; L. 1928, chs. 818, 819). The two sections are to be read together. When appropriate action was taken under section 143, section 142 made the continuance of such action obligatory to "those justices elected in the first and second judicial departments" then in office and "to those hereafter elected or appointed." When the Board of Estimate acted in 1930 to increase the compensation of justices it did so under permission granted by the Legislature. Having exercised the power granted, its action may not be undone by the same or a successor board except by legislative action or authority (Matter of PoughkeepsieBridge Company, 108 N.Y. 483). Section 142 of the Judiciary Law is a general statute. Having exercised the limited power granted, the board *Page 533 was functus officio. The Legislature may not grant the power to repeal general statutes and, incidentally, made no attempt to do so. (Matter of N.Y. Elevated R.R. Co., 70 N.Y. 327; People v.Klinck Packing Co., 214 N.Y. 121, 138; People ex rel. Unger v. Kennedy, 207 N.Y. 533; Matter of Black v. O'Brien, 89 N YL.J., p. 3645, June 17, 1933, affd. 241 App. Div. 639,264 N.Y. 272.) It made no attempt to delegate the power to reduce compensation. We may not imply an attempt to do that which the Legislature was without power to do expressly.
There is nothing new in the fact that authority may be granted to increase the compensation of a justice and authority to decrease it withheld. That is exactly what the People have declared to be their considered policy. In the Constitution of 1894 there was a prohibition against either increasing or decreasing the compensation of a justice during his term of office (art. VI, §§ 12, 15). In 1925 the People amended the Constitution so as to continue the prohibition against a decrease in compensation but struck out the prohibition against an increase. (Art. VI, § 19, quoted, supra.)
Statutes enacted in other States have received similar construction (Freeney v. Brown, 182 Ga. 818; Best v.Maddox, 185 Ga. 78; Petition of Breidenbach, 214 Wis. 54. See, also, Beach v. Kent, 142 Mich. 347).
In Freeney v. Brown (supra), county commissioners, by constitutional amendment, were granted power to provide for additional compensation to certain superior court judges. They did so but on their attempt to withdraw the increase and terminate the payments were held to be powerless so to do. They had been granted an option to act but having acted, had exercised all the power delegated.
So in Best v. Maddox (supra), following Freeney v.Brown (supra), it was held that the county commissioners had no authority to terminate or reduce the supplemental salary voted by them even as to a subsequent term of the judge.
Again in In re Breidenbach (supra), it was decided that a legislative act granting power to a county board to pay additional compensation to certain circuit judges was an "option" but that when it was exercised the county board was without power to rescind its action in granting or to withhold the additional compensation granted. *Page 534
Analogously, the reduction of an increase in compensation is just as illegal as a reduction of the original compensation, when the power to decrease the compensation of a justice does not exist. (Booth v. United States, 291 U.S. 339, 352, citingCommonwealth v. Mann, 5 Watts S. [Pa.] 403; New Orleans v. Lea, 14 La. Ann. Rep. 197; Long v. Watts, 183 N.C. 99.)
Thus, whether the question has arisen with respect to the power of State Legislatures, as restrained by State Constitutions, or with respect to the power of local bodies, exercising limited grants of power conferred by Legislatures, the answer has been the same in the Supreme Court of the United States and in the State supreme courts of Pennsylvania, Wisconsin, Georgia, Louisiana and North Carolina, viz., that the power to increase judicial compensation does not include a power to decrease it and that when the power to increase is once exercised, it may not be rescinded or modified without further express constitutional or legislative authority, depending upon the individual instance.
On five separate occasions during a period of nearly one hundred years, the Legislature has enacted legislation permitting the city to provide for additional compensation. In each instance, the authority delegated has been to provide "such additional compensation as such board may deem proper." In no instance has there been an express grant of power to the municipal body to reduce the compensation once fixed. Such power may not be implied. The theory that the power to increase compensation necessarily includes the power to take it away has been pronounced unsound. (Booth v. United States,291 U.S. 339.) Moreover, the withholding on those five occasions of the express grant of power is indicative of legislative intent that the power of reduction should be withheld. (Hyatt v. Taylor,42 N.Y. 258, 262; Wm. B. Astor v. Mayor et al., 62 N.Y. 567,578; Whitmore v. Mayor, 67 N.Y. 21, 22; Polhemus v. F.R.R.Co., 123 N.Y. 502, 507; Matter of Jensen v. Southern PacificCo., 215 N.Y. 514, 522, reversed on another point, 244 U.S. 205;Matter of Thomas, 216 N.Y. 426, 429.)
Indeed the only legislative expression during that period upon the subject has been against any reduction of that portion of the additional compensation payable by the city to the justices of the Supreme Court resident in the first and second judicial districts (L. 1932, ch. 637, § 2). That came about as *Page 535 follows. The Governor convened an extraordinary session of the Legislature in 1932, transmitting an emergency message in which he recommended: "Legislation permitting the city of New York * * * to reduce any or all salaries now mandatorily fixed by State statute and payable in whole or in part from the city treasury; * * *" (Emphasis supplied). The Governor recited in the message that the city had requested "that immediate legislation be enacted to enable" it to effect economies to maintain its credit. (Emphasis supplied.) The Legislature enacted special legislation permitting the reopening of the budget for the year 1933 and granting to the local authorities the right to redetermine the salary of any official whose compensation was paid in whole or in part by the city, not only for the year 1933 but in "subsequent years during the pendency of the emergency". Significantly, the Legislature expressly exempted from the application of the statute the justices of the Supreme Court resident in the first and second judicial districts, notwithstanding the fact that there was no constitutional limitation preventing such action as to justices elected in "subsequent years during the pendency of the emergency". When the emergency legislation was enacted, the justices so exempted were receiving the $10,000 additional compensation now sought to be reduced. The Legislature made no distinction between justices then in office and those thereafter to be elected, although during the five-year period of emergency twenty-two justices (ten resident in the first district and twelve resident in the second district) were elected or re-elected to office.
Chapter 637 of the Laws of 1932, and the proceedings resulting in its enactment, establish beyond dispute the practical construction by the Legislature and the city of Judiciary Law, sections 142, 143, and the 1930 resolution of the board in three respects: (1) the additional compensation of $10,000 per annum was "mandatorily fixed" although paid by the city; (2) the Legislature had reserved to itself and had not delegated to the city, the power to reduce such additional compensation and (3) any reduction would have to be brought about either by the Legislature or by the city with the special permission of the Legislature.
The order should be affirmed, with costs. *Page 536