Bixby v. Mayor of New York

Ingraham, J.

I concur with the presiding justice in his construction of the act of 1888, and I think it clear that the plaintiff is not entitled to recover. The act of the common council in attempting to pass the resolution known as the resolution of December, 1869, was without authority. Their act was therefore void, and there was no resolution passed. The legal salary of plaintiff was $5,000 per year. Por that he was to perform the services required of him by law as police justice, and he received such compensation for such services. In 1888, when the act in question was passed, there was no resolution in existence, but for a certain period plaintiff had been paid upon the assumption that the resolution fixing such salary at $10,000 per year was legal. The act proceeds to legalize such payment, and declared that the plaintiff was lawfully paid the amount that he was to be paid under the void resolution. The act then provides that said resolution is hereby legalized, ratified, and confirmed. How for the first time there is legal resolution; for the first time there is anything that is binding upon the municipal corporation. There is no intention expressed that the act should have retroactive effect, except so far as to legalize the payments that had been actually made; so that the position is that on May 26, 1888, a resolution is adopted whereby it is resolved that “the salary of each of the police justices be, and is hereby, fixed at the same rate as now paid to the city judge.” The services that the plaintiff had rendered, and for which he seeks to recover in this action, had been rendered, and his term of office had expired, long prior to the passage of the act. This act, if it was to take effect as of the date of its passage, could not affect his right to compensation rendered before it was passed. Had it been the intention of the legislature to give, by the mere legalization of the void resolution, the retroactive effect claimed by plaintiff, the legalization of the payments by the city officers would have been unnecessary. All that would have been necessary would have been to legalize the passage of the resolution as of the date at which it was attempted to be passed; and when the legislature provided that the payments made on the assumption that the resolution was valid *367should be legalized, and then proceeded to legalize the resolution, I think that the act, so far as it was to have any effect prior to its passage, must be confined to the express provision of the statute legalizing the payments. The act of the legislature, in legalizing the resolution, is not the act of the principal ratifying an act of an agent, whereby»the agent had assumed to act for his principal without authority. When the common council attempted to pass the resolution, they assumed to act under power delegated to them by the people of the state. Such power had not been delegated; consequently their act was void. Subsequently the legislature, notwithstanding the common council had no power to do what they attempted to do in 1838, legalized the resolution, then making it a legal resolution, and it could only be effectual from the time when it was legalized. But, assuming that the act had the effect claimed by plaintiff, the cause of action for the salary unpaid arose only when the act legalizing the resolution was passed, and this action was commenced prior to that time, and without presentation of the claim to "the comptroller, when it was a legal claim, and the city was bound to honor it. When the action was commenced, therefore, there was no liability of the city, and no cause of action against the city existed. I concur, therefore, with the presiding justice that a new trial should be ordered.