I agree with the majority opinion that the Economy Bill (Laws of 1932, chap. 637) did not give the board of aldermen the power to increase the salaries of these petitioners. I am constrained to dissent, however, on the conclusion reached that the remuneration of these petitioners as employees of the Independent Subway System is under the independent control of the board of transportation and is not subject to fixation by the city of New York acting through its board of estimate and board of aldermen.
It is conceded that the board of transportation in conducting the operation of the Independent Subway System is acting as the city’s agent and that ordinarily the principal controls the agent, *218but the majority holds that the board of transportation as successor to all the powers with which its predecessors under various statutes were vested, constitutes a State instrumentality, and is, therefore, carrying on a State function, though simultaneously acting as the agent of the city. Though the board of transportation is the successor to the transit commission created in 1921, which took otver the duties of the transit construction commissioner created under the Laws of 1919, formerly a part of the Public Service Commission of the First District, a body appointed pursuant to the Laws of 1907, it is demonstrably not the fact that in the sole issue here presented for adjudication, namely, the power to fix salaries and expenses, the present board of transportation is successor “ to all the powers with which its predecessors under various statutes were vested." Under section 13 of the Public Service Law the power given by the Legislature to the old transit commission to fix salaries of its employees was given in the following language: “ All officers, clerks, inspectors, experts and employees of a commission, and all persons appointed by the counsel to a commission, shall receive the compensation fixed by the commission, which, if to be paid by the State shall be within the amounts appropriated therefor by the Legislature."
Under section 14 of the Public Service Law, subdivision 2, it was further provided: “ The salaries of the commissioners, secretary and counsel of the transit commission shall be paid monthly from the State treasury upon the audit and warrant of the Comptroller out of the funds provided therefor. All other salaries and expenses of the transit commission shall be chargeable to the city in which such commission has jurisdiction, and shall be audited and paid as follows: The board of estimate and apportionment * * * shall, from time to time, on requisition duly made by the transit commission, appropriate such sum or sums of money as such commission shall certify to be necessary to properly enable it to do and perform, or cause to be done and performed, the duties imposed upon it. Such appropriation shall be made forthwith upon presentation of such a requisition without revision or reduction and without the imposition of any conditions or limitations by such board or body, and such appropriation by it is hereby declared to be a ministerial act.” (Italics mine.)
It further provided that if the board of estimate failed to appropriate such amount as the transit commission deemed necessary the commission might apply to the Appellate Division of the Supreme Court in the First Judicial Department for an order “ requiring such board or body to make such appropriation."
*219The present board of transportation was created by article VIII of the Public Service Law (added by the Laws of 1924) and the provisions with regard to the payment of salaries and expenses give no such authority to the board of transportation as was given in clear and unmistakable terms to the former transit commission. So far as relevant, section 133 of the Public Service Law, enacted in 1924 -under the title “ Payment of salaries and expenses,” provides that the salaries of the members of the board of transportation and the salaries and expenses incurred in the exercise of its powers and duties shall be chargeable to the city and audited and paid as follows: “ The board of estimate and apportionment * * * shall, on requisition duly made by the board [of transportation], stating the purposes for which such moneys are required, appropriate such sum or sums of money as the hoard of estimate and apportionment * * * may deem necessary for the payment of such salaries and expenses.” (Italics mine.)
The omission from the act creating the board of transportation of the language in the Public Service Law with regard to the power to fix and determine salaries and expenses could not have been inadvertent; it was intentional and it necessarily indicates a very different and much more limited grant of power to the board of transportation. Nor is the language used an indication that the board of estimate is merely to fix a single total and the board of transportation to disburse such total as it may determine. The language connotes an opposite intention; it refers to “ such sum or sums ” as the board of estimate “ may deem necessary for the payment of such salaries and expenses.”
Under section 56 of the charter, power is vested in and it is the duty of the board of aldermen, upon the recommendation of the board of estimate, to fix the salary of every officer or person whose compensation is paid out of the city treasury, with exceptions that are not here relevant, and this the board of aldermen has fixed at six dollars a day in the case of these petitioners, not by one resolution, but by several.
It is claimed that section 56 relates only to those whose compensation is paid out of “ the city treasury ” and that under the provisions of section 136, subdivision 3, of the Public Service Law the revenue derived from municipal operation of the Independent Subway System is held separate and apart from all other funds of the city; that the operating expenses are paid out of this special fund; and that accordingly the payments are not from the city treasury. But by referring to “ other funds of the city ” that very section designates these funds as city funds and, therefore, they should be deemed to be part of the city’s treasury. In addition *220it may be pointed out that under section 133 of the Public Service Law the salaries of the members of the board of transportation and the salaries and expenses paid or incurred in the exercise of their powers are “ chargeable ” to the city. The liability for payment is the city’s liability, and it is absolute and not dependent on the amount in the separate fund. Section 136, stating how the receipts shall be deposited, is merely a provision for purpose of administration; it in no way lessens the primary liability of the city for such operating expenses and salaries.
It is alleged that there has been a practical construction of the statutes by the conduct of the parties in that the board of transportation without interference from the city filled the positions and fixed the salaries of the employees at the time they were temporary employees. The Independent Subway System started operation on September 10, 1932, and the record shows that the salary of these temporary employees was. approved on January 20, 1933, by the board of estimate and adopted by the board of aldermen on January 24, 1933, and later approved by the mayor. Thus from its inception the board of transportation has never fixed the salaries of these employees without the approval of the city.
The operation of the municipal subway is clearly not a governmental function, but a proprietary function. Although section 45 of the charter was last amended in 1907 and section 56 was amended* under the City Home Rule Law of 1924, section 56, as amended, does not repeal by implication section 45. But the Legislature in enacting in 1924 article VIII of the present Public Service Law, establishing the present board of transportation and defining its powers and duties, has determined under section 133 of that act by whom the salaries of the employees should be fixed, and has intrusted such power not to the independent action of the board of transportation but to the board of estimate, whose recommendation under the provisions of section 56 is subject to approval by the board of aldermen.
The recital of the wrong statutory authority in the resolution of December 14, 1934, does not make the action void if there was authority in law, as I believe there was under section 133 of the Public Service Law and section 56 of the charter.
Whether the resolution of the board of estimate on December 14, 1934, concurred in by the board of aldermen on December 18, 1934, was intended to cover only the station agents of the so-called collecting classes and not the station agents who are referred to as “ money changers ” was a question of fact. It was the main issue presented *221to the jury on the alternative order, and the jury found on that issue of fact for the petitioners. In my opinion the verdict should not have been set aside as it was sufficiently supported by the evidence.
The. wisdom of committing to the board of transportation the greatest possible freedom from interference on the part of the city in the exercise of its extremely important and onerous responsibility of operating the Independent Subway System is a matter for the Legislature and not the courts. Further, if the board of transportation can show the board of estimate that these petitioners should not in the future receive six dollars a day but only fifty to fifty-two cents an hour, the board of transportation can make requisition for such salaries to the board of estimate and on the approval of such board reduce any of the salaries of these station agents to such rate per hour as may be deemed to be reasonable and proper.
Accordingly, I dissent and recommend that this court (1) reverse the order of the trial judge setting aside the verdict of the jury and ordering a new trial; (2) reinstate the verdict of the jury in favor of the petitioners, and (3) reverse the order denying the motion for a final peremptory order of mandamus, and grant such motion with costs.
Order denying petitioners’ motion for a peremptory order of mandamus affirmed, the order denying the motion of the defendants for a final order vacating the alternative order and dismissing the petition reversed, and said motion granted, and the order entered on or about March 11, 1936, in so far as it grants defendants’ motion to set aside the verdict of the jury in favor of petitioners affirmed, without costs. The appeal from so much of said order entered on or about March 11, 1936, as denies a motion for a directed verdict on behalf of defendants dismissed.
See New York City Local Laws of 1925, No. 1.— [Rep.