The facts in this proceeding are not in dispute. Seventeen justices of the Supreme Court, nine residing in the first judicial district and eight in the second judicial district, instituted this proceeding under article 78 of the Civil Practice Act to compel appellants, constituting the Board of Estimate of the City of New York, to pay to them parts of their salaries withheld by appellants and hereafter to pay to each of them the same compensation paid to other justices of the Supreme Court resident in the districts involved.
Justices of the Supreme Court are State officers (Public Officers Law, § 2) and receive an annual salary from the State of $15,000. (Judiciary Law, § 142.) The State Constitution (art. VI, § 19) empowers the Legislature to fix the salary but contains a prohibition against any reduction in the salary of a justice during his term of office. Because of that fact their salary can be regulated only by the Legislature (Freund v. Hogan, 264 N. Y. 203, 204), and while the Legislature unquestionably may confer certain authority respecting that subject upon local bodies — as has been recognized in this State since 1852 (People v. Edmonds, 15 Barb. 529) —any action of such local body which transcends the authority granted to it by the Legislature is void.
Since the year 1852, in the case of the first district, and for many years in the case of the second, the City of New York, under authority granted by the State, has been paying to justices of the Supreme Court, resident in the first and second judicial districts, an annual compensation in addition to that paid by the State to all justices of the Supreme Court. (L. 1852, ch. 374, § 7; L. 1882, ch. 410, § 1108; Judiciary Law, 1909, § 143 as amd. by L. 1928, ch. 818; L. 1941, ch. 290, § 8.)
From 1909 to 1930 the amount so paid to each justice was $7,500 per annum. On June 13, 1930, the amount was increased to $10,000 per annum for each such resident justice.
On November 2, 1939, the Board of Estimate adopted a resolution purporting to reduce from $10,000 to $7,500 the amount which the City would pay to justices ‘1 hereafter appointed or elected, including those elected upon the expiration of their present terms of office ”.
On January 16,1941, the Board of Estimate adopted a further resolution purporting to provide that the resolution of November 2, 1939, “ shall not apply to Justices of the Supreme Court assigned to the Appellate Divisions of the First and Second Judicial Districts during the period of such assignment.”
Thereafter and effective July 1, 1942, the Board of Estimate adopted a resolution purporting to provide that the reduction *570in the salaries of justices of the Supreme Court in the first and second judicial districts should not apply to any justices “ who occupied their present offices by election on July 1, 1939,” even though such justices might have been elected after November 2, 1939.
The foregoing resolutions, insofar as they affect the respondents, have been continued in force by resolution of the Board of Estimate and are included in the budget of the City of New York for the fiscal year 1943-1944.
. In pursuance of the resolution of November 2,1939, the Board of Estimate has paid to respondents additional compensation at the rate of $7,500 per year instead of the sum of $10,000 paid during the same period to other justices not within the classification named in the resolution. These payments have been received at the times, in the amounts and under the protests noted in the petition. During the same time the Board of Estimate, pursuant to the resolution effective July 1, 1942, has also paid to certain justices resident in the first and second judicial districts and elected or re-elected after November 2, 1939 the sum of $10,000 per year.
It appears that the Board of Estimate has not only discriminated between those justices elected prior to November 2, 1939, and those afterwards elected, but has also discriminated in the matter of compensation between justices elected after November 2, 1939. It also appears that the Board of Estimate has fixed the compensation of judges of the Court of General Sessions, of judges of the County Courts and of the surrogates of the Counties of New York, Bronx, Kings and Queens at the same total compensation then awarded to justices of the Supreme Court resident in the first and second judicial districts, viz., the sum of $25,000 per year; and that, while by the terms of such resolution of November 2, 1939, it was provided that the compensation to be paid to such judges and surrogates thereafter appointed or elected should be reduced by the sum of $2,500, nevertheless certain of the judges and surrogates elected or re-elected after November 2,1939, have continued to receive total compensation at the rate of $25,000 per year, and that the surrogates of New York, Bronx, Kings and Queens Counties have been receiving total compensation in the same amount of $25,000 per year.
Respondents, deeming themselves aggrieved by the action of the Board of Estimate, instituted this proceeding. The New York Special Term of the Supreme Court declared the reducing resolution invalid and granted to respondents the relief for *571which they applied. From that order appellants appealed to the Appellate Division of the Supreme Court, First Department. The latter court transferred the cause to our court for hearing and determination.
On this appeal appellants contend that section 143 of the Judiciary Law confers upon the City the power to reduce, as well as increase, the additional compensation payable to justices; and that the classifications set up by the three resolutions are reasonable, equitable and valid. As an affirmative defense appellants assert that the Statute of Limitations (Civ. Prac. Act, § 1286) bars any recovery by respondents for any period prior to July 1,1944.
" The same contentions were urged at Special Term and were there rejected by Mr. Justice Wasservogel in a comprehensive and carefully considered opinion.
Respondents take the position that the justices of the Supreme Court — together — form one class and that the Legislature may subdivide that class on the basis of residence in certain judicial districts as well as on the basis of assignment to the Appellate Divisions, as it has done ih' sections 142, 143 and 144 of the Judiciary Law. But, they say, the Legislature having placed the justices resident in the first and second judicial districts in one class by authorizing the Board of Estimate to provide additional compensation for them, the Board has not the authority either (1) to discriminate between members of that class, or (2) to classify them further on the basis of time of election, place of assignment, or on any other basis.
Respondents also assert that while section 143 of the Judiciary Law grants to the Board of Estimate the option to provide additional compensation to justices of the Supreme Court resident in the first and second judicial districts it does not authorize the rescission or reduction thereof once the amount has been fixed, nor does it confer any authority to discriminate between justices as to such compensation.
By Laws of 1852, chapter 374, section 7, it was declared to be lawful for the Board of Supervisors of New York County to raise by tax upon said county and pay to justices of the Supreme Court resident in the first district “ such additional annual compensation as they may deem proper ”. That provision was carried into Laws of 1882, chapter 410, section 1108, with the exception that there the authority was conferred upon the Board of Estimate and Apportionment, and it was then carried into the Judiciary Law of 1909, as section 143 thereof, in the same form. By Laws of 1928, chapter 818, said section 143 was amended *572so as to confer the same authority with respect to other judges, and by that amendment the section was made'to read as follows: “ 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. No increase, pursuant to this section in the total salary and compensation of the justices, judges or surrogates of any such court or courts over the salary and compensation received by them in the year nineteen hundred and twenty-seven shall require or effect an increase of the salary or compensation of the justices, judges or surrogate of any other of said courts, unless the board of estimate and apportionment shall so provide, any other statute to the contrary notwithstanding.”
The section was further amended by Laws of 1941, chapter 290, section 8, but merely 'to substitute the words “ board of estimate” for the words “ board of estimate and apportionment.”
Three things are to be noted: First, the provision is a permission given by the Legislature to a local body — the local body. “ may provide ” additional compensation. Second, the permission is to provide additional compensation to justices of.the Supreme Court resident in the first and seconds districts and to judges of certain other courts “ or to the justices, judges or surrogates of any of such courts ”. Third, the justices are spoken of collectively and as a class, not separately as individuals. The language is “ to the justices, judges or surrogates of any such courts,” not to “ any of the justices, judges or surrogates of such courts ”. The compensation is provided for all holders of the specified offices.
No authority is granted to take away or reduce a compensation once fixed. No authority is granted to fix one compensation for one justice or judge or surrogate of one court and a different compensation for another justice or judge or surrogate of the same court. No authority is granted to fix one compensation for some justices of the Supreme Court resident in the first and second districts and a different compensation for other justices of the Supreme Court resident in such districts.
I entertain no doubt that the Legislature might take away or reduce a compensation once fixed by it, subject only to. the *573constitutional prohibition against diminishing a judge’s compensation during his term of office (N. Y. Const. art. VI, § 19); and that the Legislature thus might provide for a reduction which would become applicable to new judges as they are elected, while continuing by force of the Constitution to pay the old rate of compensation to judges already in office when the statute affecting the reduction was enacted. Here we are not concerned with an act of the Legislature, but rather with a resolution of a local body; and the question does not involve legislative power, but the scope of an authority granted by the Legislature to a local board.
Further confirmation of our view that the Board is powerless to reduce the compensation of respondents is found in section 142 of the Judiciary Law.
Whatever the scope of the authority conferred upon the Board of Estimate by section 143, it is of course clear that such authority is subject to whatever limitation thereon is imposed by section 142 of the Judiciary Law. The words of section 142 with which we are now concerned are the following: “ * * * Those justices elected in the first and second judicial departments shall continue to receive * * * such additional compensation as they are now receiving * * * . The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed.”
The contention is made by the appellants that the words 1 ‘ now receiving ’ ’ relate to the year 1926, when section 142 was first enacted; and as the compensation which the justices elected in the first and second departments were receiving from the City of New York in 1926, was $7,500 each (the sum of $10,000 each not having been fixed until June 13, 1930), section 142 does not prevent the reduction herb- in question.
If the provision in section 142, that the “ justices elected in the first and second judicial departments shall continue to receive * * * such additional compensation as they are now receiving ” stood alone, there might be some justification for the appellants’ view that the words “ now receiving ” may not be taken as referring to a date later than the date of enactment or, more properly, the date of the last amendment, April 10,1929. (L. 1929, ch. 464.) But that provision does not stand alone. It is followed by the sentence: “ The provisions of ..this section shall apply to the justices now in office and to those hereafter elected or appointed ”, It obviously is impossible for justices elected after April 10, 1929, to continue to receive the additional compensation they were receiving on that date, for *574justices thereafter elected were not receiving any compensation as justices on that date. In only one of two ways, therefore, can there be compliance with the legislative command that this provision of section 142 shall apply to justices thereafter elected. One is to say that justices thereafter elected shall receive such additional compensation as justices previously elected were receiving on April 10, 1929. The other is to. say that justices thereafter elected shall receive such additional compensation as justices previously elected receive. As between these two alternatives, we submit there can be no doubt that the latter is the only one which gives effect to all the words of the statute and which carries out its manifest intent.
The first alternative — the one which construes the. statute as saying that the justices elected after April 10,1929, shall receive such additional compensation as justices previously elected were receiving on April 10, 1929 — disregards entirely the idea of continuity which is clearly expressed in the words “ shall continue ”, and amounts to striking out the words “ shall continue to receive ” and substituting therefor the words “ shall receive ”. It also causes the words “ those justices elected in the first and second judicial departments ” to be taken distributively as between justices previously and thereafter elected, whereas the intent is plainly manifested that justices elected previously and justices elected thereafter are to be taken collectively as a single group, all embodied in the words “ those justices elected in the first and second judicial departments ” regardless of the time of election. The suggested construction also results in a discrimination between justices elected before and justices elected after April 10,1929, whereas the intent that justices elected before and justices elected after that date shall be treated equally is clearly expressed in the sentence providing that the section shall apply to both.
The authority given by section 143 to provide for “ such additional compensation as such board may deem proper ” is a power to provide such additional compensation to “ the justices of the supreme court resident in the first and second judicial districts ” — not a power to provide one compensation for some of such justices and a different compensation for other of such justices — and under section 142 that compensation must be for justices elected after as well as those elected before April 10, 1929.
This, therefore, is a case in which the words “ now receiving ” cannot be given a meaning which makes them speak solely as of the date of the enactment. It is a case in which the dominant *575intent of providing a nondiscriminatory and an unreduced compensation to.all the justices elected in the first and second departments must be given effect. To that end, the statute is to be read as a continuing one which speaks anew each day of its existence and hence provides for a continuance of such additional compensation as is once fixed; and as the Board of Estimate fixed that compensation at $10,000 on June 13, 1930, the compensation so fixed must be applied to all justices alike, regardless of time of election. That is, it must be applied, in the very words of the section, to “ the justices now in office and to those hereafter elected or appointed.”
Provisions similar to section 143 of the Judiciary Law have been adopted in other States, and it has been held that they do not authorize either a rescission of a compensation once fixed or the fixation of one salary for one judge and another salary for another judge of the same court. (Beach v. Kent, 142 Mich. 347; Freeney v. Brown, 182 Ga. 818; Petition of Breidenbach, 214 Wis. 54; Commonwealth v. Mann, 5 Watts & Serg. [Pa.] 403; Commonwealth v. Mathues, Appellant, 210 Pa. 372.)
Where authority to decrease does not exist, the reduction of an increase is just as illegal as a reduction of the amount at which the judge’s salary was originally fixed. (Booth v. United States, 291 U. S. 339 and cases there cited.)
Appellants rely principally on Matter of Abrams v. La Guardia (174 Misc. 421, affd. 262 App. Div. 724, affd. 287 N. Y. 717). That case involved reductions in the salaries of justices of the Municipal Court of the City of New York, which, as the court there held, “ is not a constitutional court and accordingly the salaries of its justices may be reduced during their term of office by appropriate legislative action.” It is not an authority for the appellants in the case, at bar.
The defense of the Statute of Limitations is inapplicable here. (Matter of Powers v. La Guardia, 292 N. Y. 695.)
The learned counsel for respondents advances other reasons to sustain the order under review. In view of our conclusion it is unnecessary to discuss them.
The order appealed from should be affirmed, with fifty dollars costs and disbursements.