(dissenting.) The questions here raised are brought before this court by an appeal from an order of the special term granting a peremptory writ of mandamus, directed to the board of councilmen of the city of Buffalo, requiring said board to approve of a certain resolution adopted by the board of aldermen on the 23d day of May, 1892, directing warrants drawn in favor of the relator and Frank J. Illig for their services as police commissioners of this city, at the rate of $3,000 per annum. By chapter 105 of the Laws of 1891 the legislature enacted a new charter for this city. It became a law on the 27th day of March, 1891. The provisions making a general change in the city government did not take effect until the first Monday of January, 1892, but titles 7 and 8 of the act took effect and became operative at once. These titles, relating to the department of police, are substantially a re-enactment of chapter 634 of the Laws of 1880, as amended by chapter 359 of the Laws of 1883, establishing a police department for this city. The salary of the police commissioners was fixed by section 36 of the act of 1880, as amended by section 8 of the Laws of 1883, at $1,500 a year, and was the salary they were entitled to receive at the time the present charter went into effect. Ho sum was named which they should receive under the new charter, but section 474 provides that all appointive officers having a fixed and limited term of service, and holding office when this act takes effect, shall, during the terms for which they were appointed, receive the salary they were entitled to receive when the charter takes effect; so that the police commissioners were entitled to receive $1,500 a year as their lawful salary, because that was the amount they were receiving at the time the act took effect. By section 184 of the charter it is provided that the commissioners of police shall receive such annual salary as may be fixed by the common council by ordinance. It was evidently intended to make provision for fixing salaries by the city when by expiration of the term of office of the present commissioners such action would become necessary, as the provision of section 474, fixing salaries, is a temporary one. By section 17 it is provided that no change shall be made in the salary or compensation of any officer or employe during his term of service. This provision is found in the section conferring power upon the common council to enact ordinances, so it would seem from the plain reading of the charter that the police commissioners were to receive $1,500 a year salary, and no more; that the common council had the power by ordinance to fix the salary of the commissioners whenever the terms of the present commissioners should expire, but could not change the salary of the present commissioners, either to increase or diminish, and consequently was limited to the amount they were receiving at the time the charter took effect. It appears that the common council, by ordinance, passed and approved by the mayor on the 8th day of February, 1892, as provided by section 184 of the charter, fixed the salary of the police commissioners at $1,500 *56a year. This was -the situation when, on April 27, 1892, the legislature passed an act amending section 184 of the charter so as to read as follows: “The commissioners of police shall receive such salary as maybe fixed by the common counsel at a joint session thereof, and the said common council shall, immediately upon the passage of this act, determine the amount of such salary." The amendment is indicated by italics, and consists in the addition of that clause to the section. Before the amendment the common council were empowered to fix the salary of the police commissioners by ordinance. The amendment still left it with the common council to-fix the salary, but it was to meet in joint session at once, and do what it was already authorized to do by the board of councilmen and the board of aldermen acting separately. The amendment does not in terms authorize the common council to increase the salary of the police commissioners, and makes no change in the section other than to authorize the common council to act in joint session, instead of in the usual way by separate action of the board of councilmen and the board of aldermen. It may well be questioned whether the amendment conferred any additional power upon the common council, and whether it was not intended'simply to change the mode of the exercise of the power which that body already possessed, in view of the express prohibition contained in section 17 of the charter, and in the absence of express authority in the amendment. However that may be, I do not think it necessary to pass upon that question. The view which I have taken of the case leads me to the - conclusion that the ordinance or resolution passed by the joint session, fixing the salary at $3,000 a year, is of no force without the approval of the mayor, and that the amendment did not have the effect to repeal the provisions of the charter requiring such approval.
It is claimed that the legislature intended to authorize the common council to fix the salary independent of the mayor, and that it is the duty of the court to give effect to such intention. While that is true, it is clearly the law that the court cannot go outside of the act, and ask opinion of the individual members of the legislature, for the purpose of ascertaining the legislative intent. People v. Potter, 47 N. Y. 375. Such intent must be gathered from the act itself, taking into consideration what evil was sought to be remedied. It cannot be supposed that the legislature, in view of the fact that the charter represented the best sentiment of the people of this city, clearly expressed after months of deliberation by some of the most learned and patriotic of our citizens, intended to take from the mayor a power so wisely and safely bestowed upon him. The evil sought to be remedied is apparent from the charter itself. Too much power was vested in the common council and too little in the mayor. It was thought to correct supposed abuses existing under the old charter, by conferring more authority upon the executive branch of the city government; and this, in a great measure, was accomplished by the new charter. It cannot be said that the legislature, in the absence of express language, intended to undo, even in part, what had required so much labor and trouble to bring about. The legislative power of the city is vested in the common council, consisting of a board of councilmen and a board of aider-men. Section 4. But by section 18 “every ordinance and resolution of the common council, except resolutions making or approving appointments to office or place, designating the official paper, canvassing votes, adopting or altering comptroller’s estimates under section seventy of this act, shall be presented to the mayor before it shall be of force. If he approves it he shall sign it, but, if not, he shall return it, with his objections, to the city clerk, who shall lay the same before the board of aldermen at its next regular- meeting thereafter;” and the board shall proceed to reconsider it, and, if passed by the votes of two thirds of all the members elected, and the board of councilmen by a like vote pass it, such resolution will be of force notwithstanding the ob*57jections of the mayor. While the mayor, independent of the statute, possesses no power to veto, neither does the common council possess any power to enact ordinances and resolutions otherwise than is expressly conferred by .statute or is necessarily and logically deducible therefrom. Both derive their power from the statute, the one as much as the other; and they are limited in the exercise of such power to such acts as are by statute conferred upon them. The common council possessed the power to fix salaries, and this amendment does not enlarge the powers of that body. It changed the procedure by which the salary of the police commissioners was fixed. Instead ■of the common council acting by its two boards, one concurring in the action of the other, it requires that the power shall be exercised immediately in joint session. The language of the amendment is clear, precise, and not ambiguous, and we are not called upon to ascertain what it means, but to determine what effect the last declaration of the legislature has upon the act amended. It is undoubtedly competent for the legislature to authorize the common council, either with'or without the approval of the mayor, to fix the salary of the police commissioners, either in joint session or by the boards composing that body acting separately. Has this been done by this amendment? It lias been seen that section 18 of the charter requires the approval of the mayor to the validity of a resolution of the character of the one passed by the common council in joint session. It is a well-known principle of construction of statutes that amendments must be read in connection with the whole instrument, and do not supersede any provision to which they are not absolutely repugnant, (In re Gilbert El. R. Co., 70 N. Y. 361; People v. Asten, 6 Daly, 18, affirmed 62 N. Y. 623;) and that one statute does not affect the repeal of another, unless the two are repugnant and inconsistent, (Hankins v. Mayor, 64 N. Y. 18.) This amendment must be construed with the charter, as a part of it, and if it is not repugnant to or inconsistent with the other provisions ■of that act they must stand together. Prom w.hat has been said it is not clear in what particular it is inconsistent with the other provisions of the charter, and the fact that it was passed as an amendment, and not with the original ■charter, does not, it seems to me, change the construction which I have given to it. If it had been a part of the original charter, it would not have seemed absurd or inconsistent with the provision requiring the mayor to approve before the action of the common council is effectual; and it is not apparent how the fact that it is an amendment changes its force or effect in that regard, or requires a different construction. Possibly the legislature intended to do what the relator claims was accomplished by the amendment. I do not think, however, that it can be fairly said that such a result was anticipated or intended. If it was, then there was a failure to state that intention, either in express language or by necessary implication. If the views here expressed are correct, it follows that the writ should not have been granted, and that the order appealed from should be reversed, with costs.
As the same question is involved in the case of People ex rel. Illig, now pending before us, a like order should be made in that case.
White, J., did not sit.