(dissenting)
I am of opinion that under the charter for cities of the second class (Laws of 1898, chap. 182), neither the common council' nor the mayor has any voice in fixing the salaries or compensation of city officers or employees. By constituting a board of estimate and apportionment with power to fix the maximum expenditures of the city government for each fiscal year, it is manifest that the Legislature had greater confidence in the judgment and discretion of such board than in that of the common council, otherwise the powers of the latter body would not have been thus limited and restricted. The salaries of certain officials were fixed by the Legislature in this' act. Section 98'provides that “The.board of estimate and apportionment has authority to fix the salaries or compensation of all city officers and employes, except as otherwise provided in this act, and except as to such officers and employes as are required to serve without compensation. But the salary or compensation of every officer and employe shall be thus fixed béfore his election or appointment, except in the first instance after this act takes effect, and shall not thereafter be changed until the expiration of the term for which he was elected or appointed,”
By this section the power is clearly given to the board of estimate and apportionment to fix the salary of a deputy comptroller, no salary having been prescribed for that office by the Legislature itself. Had it been intended that the action of the board of estimate and apportionment in fixing salaries should be subject to approval or revision by the common council, it would have expressly so provided, according to the usual course of legislation in such cases,
It is true that section .96 of the charter requires that the salaries *493of all officials or employees, whether fixed by the Legislature or by the board of estimate and apportionment, shall be included in the estimate to be fixed in the first instance by the board, subject only to reduction by the common council. There is as much room for contention that the common council has authority to diminish or reject from those items the salary expressly prescribed by the Legislature for a public official, as the salary fixed by the board of estimate and apportionment for an official or employee, and in my opinion either contention is unwarranted by the language employed in the charter.
The provision of section 96 authorizing the common council to diminish or reject any item contained in the estimate submitted by the board of estimate and apportionment, except such as relates to the city debt, does not authorize the diminution or rejection of fixed charges and liabilities. Salaries, when prescribed by the Legislature or by the board of estimate and apportionment, become fixed charges and liabilities of the city and it is not within the province of the common council to either diminish or reject them.
The office of deputy comptroller having been created by sections 6Í and 62 of the charter, and no salary having been prescribed therefor, the power was vested in the board of estimate and apportionment alone to fix such salary. It was, evidently, originally the intention of the board of estimate and apportionment to fix the salary of the deputy comptroller at $2,500 per annum, as an item to that effect was included in the estimates, but no formal resolution appears to have been adopted fixing the salary at that sum.
Inasmuch as plaintiff makes no claim to this salary at $2,500 per annum, it is unnecessary to determine whether the action of the' board on February 27, 1900, in including an item of $2,500 for the salary of a deputy comptroller in the estimates, was sufficient in law to fix the salary at that amount. The salary was formally fixed by such board on the 8th day of August^, 1900, at $2,200 per annum, Plaintiff is, therefore, at least entitled to recover his salary at the rate of $2,200 per annum.
For these reasons I dissent from the prevailing opinion.
J udgment ordered for the plaintiff, without costs, in accordance with the opinion of Spring, J.