Article 6, section 19, of the State Constitution directs that the justices of the Supreme Court "shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office." From time to time, since the enactment of the Judiciary Act of 1847, the Legislature has made various changes in the salary paid by the State to these justices, the pay rate now in effect being stated in section 142 of the Judiciary Law, which says that each such justice "shall receive from the state the sum of fifteen thousand dollars per year" (the State pays an additional amount to justices assigned to the Appellate Division). Besides establishing a State-paid salary, however, the Legislature as long ago as 1852 recognized also that living costs in New York City justified the payment to the justices living therein a somewhat larger total compensation than was allotted to their brethren in other parts of the State (see The People v.Edmonds, 1853, 15 Barb. 529). The Legislature did not deal with that situation by voting the New York City justices any additional sum out of the State treasury but authorized the then Board of Supervisors of New York County (later the City Board of Estimate and Apportionment, still later the City Board of Estimate) to provide for the raising by tax, and for the payment to those particular justices, "of such additional compensation as such board may deem proper" (present section 143, Judiciary Law; original provision in L. 1852, ch. 374, held valid in ThePeople v. Edmonds, supra). There is nothing in section 143 or in any of its predecessor statutes passed since 1852, banning downward, as well as upward, changes by the city in the "additional compensation". The city's legislative body exercised the power so given it by the Legislature by fixing, from time to time over the years, additional increments of salary for the justices living in New York City. In 1852 the city's allowance was $1,500 per year. Gradually it was augmented until from 1909 to 1930 the additional amount so provided by the city for each resident justice was $7,500 per year. In 1930 it was further increased to $10,000 per year, thus making the total compensation of each such justice $25,000 per year. That total rate was maintained until 1939. In November of 1939 the Board of Estimate, as *Page 537 part of an effort to reduce city expenditures, passed the resolution which the courts below have, in this proceeding, held invalid. That resolution purported to reduce by $2,500 per year, and thus to set at $7,500 per year, the city-paid compensation of Supreme Court justices residing in New York City (and of certain other judges) "hereafter appointed or elected, including those elected upon the expiration of their present terms of office". The petitioners are seventeen justices of the Supreme Court, all residing in New York City (some in the first, others in the second judicial district) and all elected for the first time after November, 1939. They bring this proceeding to compel the fiscal officers of the city to pay to each of them not $7,500 per year, as per the November 1939 resolution, but $10,000, the amount that was being paid by the city to justices living therein, before November, 1939. This proceeding, therefore, involves no rights of any justice who held the office by election before that resolution went on the books. Petitioners have been successful in both courts below, the Appellate Division, by a 3 to 2 vote, affirming a Special Term order granting the petition.
The substance of the claim of petitioners and of the holdings below is this: that the Legislature has delegated to the New York City Board of Estimate only enough of the legislative salary-fixing power to permit the Board of Estimate to establish the amount of, and to increase, but never to reduce, the city-contributed part of these judicial salaries. That, of course, must mean that any increase of the city-paid increments becomes, as soon as provided for, frozen into law forever, fixed beyond the possibility of diminution. Admittedly there is nothing in the Constitution or in the Judiciary Law, expressly prohibiting the city from regulating its contribution to these salaries by making a reduction thereof, applicable to future-elected justices only. Indeed, a 1926 amendment (chapter 155 of that year) to section 142 of the Judiciary Law suggests that the Legislature recognized that the city would have such power under section 143, unless specifically negatived. That 1926 amendment, passed at a time when the city was paying $7,500 per year to each justice, added to section 142 this sentence: "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 *Page 538 compensation as they are now receiving therefrom". That 1926 amendment for the first time put a floor under the city-paid increments of salaries, and of course prevented the city thereafter from fixing its part of the salary at any amount less than $7,500 per year. But a few years later, in 1930, the city, as aforesaid, increased its contribution to $10,000 per year per justice. Petitioners argue that the 1930 increase put a new floor under the city's rate of contribution. They base this, it seems, on another sentence of section 142. That other sentence, also added to section 142 in 1926, says that the provisions of that section, including of course the other 1926 amending language above quoted, "shall apply to the justices now in office and to those hereafter elected or appointed." The argument is that the quoted language amounts to a continuing mandate of the Legislature to the city, that, as each new justice is elected, he must be paid the same total salary as is being paid, at the time of his election, to the justices already in office. If we accept that as the legislative intent, then petitioners, newly elected to the bench after the 1939 resolution, would have an absolute right to the same pay as the justices previously serving, and who had theretofore been granted by the city an increase of $10,000 per year. Such a construction seems unwarranted. The quoted language making applicable to justices thereafter to be elected the other requirement of section 142, that justices shall receive "such additional compensation as they are now receiving" means, naturally and reasonably, only that justices elected after 1926 as well as those on the bench before that year, shall have from the city not less than the $7,500 which was being paid by the city in 1926. The phrase "such additional compensation as they are now receiving" means $7,500 per year (see, as to construction of "now" General Construction Law, § 34). Nothing found elsewhere in the Constitution or statutes goes any farther than that.
It is urged upon us that the Legislature, empowering the city to pay additional compensation to justices of the Supreme Court, could not reasonably have intended that the power thus given the city should be exercised in such fashion that some New York City Supreme Court justices should receive smaller compensation than others. Such a situation, it is said, is so manifestly unfair and discriminatory that the statutes should *Page 539 be construed so as to forbid it. But the alternative, too, would have a drastic consequence. If the city has to make the same payment to all the justices who make up the court at any given time, then increases are possible, but never reductions, since any reduction as to new justices would always, if enforced, put them into a salary bracket lower than that of their associates who had been elected before the reduction. Thus the city could grant increases, but only at its peril. It is not necessary to agree or disagree with the view expressed by the Special Term opinion herein that "it is repugnant to sound principles of judicial administration to have justices performing the same functions and carrying the same responsibilities receiving different compensation." (182 Misc. 507, 511.) The question for us is one of law only. The reduction of any justice's salary during his term of office is forbidden by the Constitution. No constitutional or statutory provision requires the maintenance of equality of pay among the justices. Discrimination of a sort thus becomes possible, of course, but the kind of discrimination here complained of does not run against any picked individuals or group but is a prospective lowering of salary as to all those, whoever they may be, who shall stand for election and be elected after a stated date. The Constitution itself, forbidding salary cuts for incumbents but authorizing them to be made prospectively, has set up a system whereby any lawfully-made reduction results in newcomers getting less than justices longer in office.
Affidavits in this record show us that the city has in fact (by 1941 and 1942 amendments to the 1939 resolution of the Board of Estimate) set up differences in salaries even among those elected after the passage of the 1939 resolution. But that grouping, which allows the higher ($10,000) city-paid salary to justices assigned to the Appellate Division and to justices re-elected for a second term, even though their current terms began after the resolution took effect, does not touch these petitioners. All we have before us are the rights of these seventeen justices who were elected for the first time after the passage of the 1939 resolution, and none of whom are serving on the Appellate Division. The legality of the exemption from the 1939 resolution, by the 1941 and 1942 modifications, of other groups of justices, is not before us on this appeal. Nor are we here concerned with the salaries of any of the surrogates of the counties *Page 540 making up New York City, or with the proper construction of section 178 of the Judiciary Law, as to "continuing equalization" of those surrogates' salaries with the salaries of Supreme Court justices.
The order should be reversed and the petition dismissed.
LEWIS and DYE, JJ., concur with CONWAY, J.; LEHMAN, Ch. J., concurs for affirmance on the ground that the express power to increase compensation of justices of the Supreme Court of the First and Second Departments does not by fair inference include an implied power to withdraw in whole or in part an increase which has been granted to all the justices of these departments since any diminution of salary could apply only to justices elected thereafter; DESMOND, J., dissents in opinion in which LOUGHRAN, J., concurs; THACHER, J., taking no part.
Order affirmed.