Betts v. State

Murray, J. (dissenting).

This controversy is submitted on an, agreed statement of facts; and is a claim filed to recover the balance of salary alleged to be due the claimant as one *508of the confidential clerks of the Appellate Division of the second department of the Supreme Court.

In the year 1907, an act was passed by the Legislature entitled “An act to authorize the justices of the appellate division of the supreme court in the second department, to appoint two confidential clerks and to provide for their compensation.”

This act became a law on June 29, 1907, and is known as chapter 560 of the Laws of 1907, and therein it is provided “ that the justices of the appellate division of the supreme court, second judicial department, or a majority of them, may appoint and at pleasure remove two confidential clerks who shall be expert stenographers to take and copy the opinions and decisions of the court. * * * The salaries of such confidential clerks shall be fixed by the justices of the court. The comptroller of the state shall cause such salaries to be paid in equal monthly installments and shall annually apportion the amounts thereof among the counties of the second judicial department.”

This law was repealed by chapter 36 of the Laws of 1909, but its provisions were divided into sections numbered 102, 265 and 267, of the Judiciary Law, and re-enacted without change of language or purport in the Consolidated Laws of the State.

Pursuant to this law a majority of the justices of said Appellate Division by written certificates on or about October 1, 1907, appointed the claimant one of the confidential clerks of the said Appellate Division and fixed his salary at $4,500 per annum and the original certificate was filed in the office of the State Comptroller about the same time. Since the date of his appointment the claimant has continuously acted as such confidential clerk and done and performed all the duties required of him. His appointment has never been revoked or cancelled nor has the designated salary been decreased, altered or changed by the justices of the Appellate Division. The State Comptroller paid the claimant’s salary at the rate fixed or designated by the justiées of the Appellate Division from the 1st of October, 1907, to the 22d day of Hay, 1908, a period of seven months and *509twenty-two days, but since the 22d'day of May, 1908, has refused to pay the full amount so fixed by the justices of the Appellate Division, on the ground that the Legislature has never appropriated the full amount of such salary as designated by the justices, so as to authorize him to pay it in its entirety as it was designated to be paid by them.

Prior to said October 1, 1907, the claimant had been employed by the said Appellate Division and the justices thereof as a confidential clerk and expert stenographer at a salary of $3,000 per annum, but with the right to charge an additional fee from those desiring copies of the court’s opinions and to exact such additional fee from those to whom such copies of the opinions were furnished. On the said 1st day of October, 1907, when claimant’s salary 'was fixed at $4,500 per annum, as above stated, he agreed to relinquish this additional fee or extra charge and to furnish said opinions free of any pecuniary benefit in consideration of the increased salary, and since that time has furnished such opinions free of charge in accordance with the agreement made with the justices at the time of the said increase of salary.

The Legislatures of 1908 and 1909 (Laws of 1908, chap. 465, and Laws of 1909, chap. 432) passed appropriation bills providing for the payment of claimant’s salary at the rate of $3,500 per year. During the last session of the Legislature a bill was introduced in the Assembly providing that the salaries of the confidential clerks of the appellate division in the second judicial department * * * shall be fixed by the justices of the court at not to exceed $4,000 per annum.” This bill passed both houses of the Legislature, but failing to obtain the Governor’s signature never became a law.

In the fall of 1909 there was commenced* on behalf of the claimant a proceeding in the Supreme Court of this State in Albany county, to obtain a peremptory writ of mandamus against the Comptroller of the State, the primary object of which was to compel the Comptroller to pay the relator the . difference in salary between that designated by the justices of the Appellate Division and the amount appropriated by *510the Legislature. This application was denied by the court at Special Term, Judge Chester writing the. opinion, and on appeal was confirmed by the Appellate Division of the Third Department “ on the ground the Comptroller, the defendant herein, is not subject to mandamus prior to an appropriation by the Legislature.”

After the decision on the mandamus proceeding, the Legislature of 1910 passed chapter 512 of the Laws of 1910, which provided “ for compensation of two confidential clerks appointed by the justices of the appellate division of the supreme court in the second judicial department $8,000,” which increased the amount previously appropriated from $3,500 to $4,000 for each of the two respective confidential clerks. The' claimant has made several applications to successive Legislatures to secure a deficiency appropriation to pay the salary as fixed by-the justices of the Appellate Division, but each Legislature has not appropriated an amount to pay the salary alleged to be due him by the claimant on the agreement with the justices, as stated, or to make up the deficiency between the amount appropriated by the Legislature and the -yearly salary as fixed by the said justices. When the last Legislature attempted to limit the salary to not more than $4,000 per year for each clerk as above mentioned,.there was also passed an act, chapter 512 of the Laws of 1910, which in part reads as follows: For deficiency in the appropriation for compensation of two confidential clerks appointed by the justices of the appellate division of the supreme court in the second judicial department from October 1, 1907, to September 30, 1910, $1^500.”

The claimant alleges that half of this appropriation, to wit: the sum of $750. is insufficient to satisfy the deficiency between the salary as fixed by the justices of the said Appellate Division, pursuant to- the provisions of the law as quoted, and the amount before appropriated by. the Legislature, and contends that there is still unappropriated and unpaid to him for such services until the end of June, 1910, the sum of $1,420.14, and that he has never accepted Said appropriation or the money to.be received thereunder in full. *511payment of Ms said salary as agreed to be paid Mm by the justices aforesaid.

The first question to be decided is that of the power of this court to hear and determine, this action. The recent amendment to the Code gives this court jurisdiction of any. claim “ founded upon an express contract.”

The act of 1907 authorizes the justices of this Appellate Division to employ two confidential clerks and expert stenographers. They did so and the certificate of appointment was filed with the State Comptroller, and the State Comptroller paid them so long as there was no dispute as .to the amount each of them was to receive.

In Nussbaum v. State, 119 App. Div. 755, it was held that an attorney appointed hy a committee of the Assembly, pursuant to a resolution authorizing the appointment of counsel to said committee, had such a contractual right against the State as enables him to sue in this court.

All questions of salary are questions of contract whether the salary be fixed by law or by order of a department under authority of law. The government contracts to pay the officer his salary and failing to do so is liable to be sued therefor. Patten’s Case, 7 U. S. Ct. Cl. 362, 371; Mitchells v. U. S., 18 id. 281; Fish v. Jefferson Police Jury, 116 U. S. 131—134; Young v. City of Rochester, 73 App. Div. 81. See Judge Hiscock’s opinion, pp. 84, 85.

Expressing the opinion that this court has jurisdiction to hear the controversy, we pass to a consideration of the merits of the claim and the liability of the State thereunder.

The first premise in the line of argument is that the Legislature conferred power on the justices of the Appellate Division to appoint two confidential clerks and fix their salaries. The Legislature in consolidating the laws under a new system of classification did not repeal or change the language or effect of the prior act. ' It reincorporated the entire language of the first act and again authorized the justices of the Appellate Division to appoint two confidential clerks and fix their salaries. The subdivision of the original statute into sections, with the power and language unchanged, did not affect the force or the interpretation to be given to the first *512act. It shows the intention of the Legislature to continue the power conferred upon the justices under the act of 1907.

In De Grauw v. Long Island Electric Co., 43 App. Div. 502, Judge Hatch (at pp. 506, 507), says: “It is a well settled canon of construction that the revision of a law does . not ipso facto work a change in its construction. To work a change of interpretation there must not only he a change in phraseology,' but such a departure from the language of the former law as indicates an intention to establish a different rule.” See also May v. Bermel, 20 App. Div. 53, 56.

The mere revision of a statute without chánge of phraseology does not effect a repeal of the statute. This principle is too well settled to need the citation of authorities. The right of the justices to appoint claimant and fix his salary is conferred by the act of 1907, and reconferred' or affirmed by the sections mentioned of the Judiciary Law, contained in the consolidation of the general laws of the State.

The supply bill of 1908, which became a law on May twenty-second of that year, contains the following, provisions: “ For compensation for the current fiscal year of two confidential- clerks appointed by the justices of the appellate division of the supreme court in the second judicial department, at .the rate of $4,500 per year each until this act becomes a law, and thereafter at the rate of $3,500 per year each,” etc.

It was upon the authority of this act that the Comptroller after the twenty-second day of said May refused to further pay the claimant the salary at the rate designated by the justices of the Appellate Division. It will be observed that this act recognizes the power to appoint and fix the salary at the rate designated by the justices. It did not repeal the provisions of the act authorizing the appointment and fixing of the. salaries, but sought to limit the amount to be paid under it. After the passage of this supply bill of 1908, the incorporation of this original law into the Consolidated Laws continued the power of the appellate justices to appoint and fix the salaries of the confidential clerks as contained in the first act, and the subsequent appropriation bills merely stated the amount appropriated for their pay.

*513The Legislature of 1910 passed an act appropriating $4,000 a year for their salaries and a deficiency appropriation of $1,500 to pay in part the difference between the amount designated as salary and the amount appropriated. This was an admission, so late as 1910, that the appointment was recognized as legal and that there was an amount due the claimant' for which the previous Legislature had not made an appropriation.

When the Governor failed to sign the hill of 1910, limiting the salary to not more than $4,000 a year, it demonstrated the difference of opinion as to whether the action of the justices in fixing the $4,500 rate was improper or not and whether the action of the justices fixing the salary without any repeal of their power was not binding on the State. But be that as it may, the right and power given to the justices of the Appellate Division to appoint the claimant and fix his salary has never been subsequently repealed, nor has the amount which the justices designated originally as the salary ever been explicitly reduced or changed by formal act of the Legislature except that in the appropriation hills quoted the amount appropriated has not been equal to the sum fixed by the justices when they acted under the sanction of the law giving them the power to fix the rate of compensation.

It is claimed by the State that such insufficient appropriation caused a repeal or changed the amount of salary as fixed by the justices of the Appellate Division.

This raises the question, can the Legislature by insufficient appropriation change or reduce the salary of an officer of the State whose compensation is definitely fixed by a specific law without a repeal of that law or some legislative expression showing the ineluctable intention that such law should be modified or changed.

United States v. Langston, 118 U. S. 389, was a case in which Langston petitioned the United States Court of Claims to recover an unpaid balance of salary claimed to be due him as Minister to Ilayti. The defense was that Congress by appropriating a less sum had indicated its purpose tó reduce the salary. It was held the statute which fixed the annual salary of-a public officer at a designated sum without limitation as to tinie is not abrogated or suspended by the subse*514quent acts appropriating a less amount for his services for a particular fiscal year, which contained no words which ex-pressedly or impliedly modified or repealed it.

¡M¡r. Justice Harlan writing for the court, says (at pp. 393, 394): “ ¡Neither of the Acts appropriating $5,000 for hie benefit, during the fiscal years in question, contains any language to the effect that such sum shall be ‘ in full compensation ’ for those years; nor was there in either of them an 'appropriation of money for additional pay ’ from which it might be inferred that Congress intended to repeal the Act fixing his annual salary at $7,500. Repeals by implication are not favored. It cannot be said that there is a positive repugnancy between the old and new statutes in question. If by any reasonable construction they can be made-to stand together, our duty is to give effect to the provisions of each. It will not be' presumed Congress intended to make a permanent reduction of his salary without indicating its purpose to do so either by express words of repeal or by such provisions as would compel the courts to say that harmony between the old and new statutes was impossible.”

Mitchells v. U. S., 18 U. S. Ct. Cl. 281, was a case where claimants held office for each of which was a salary fixed by statute, which remained unrepealed. ' Congress appropriated a sum of money insufficient to pay the full amount of the salary. It was held the" liability of the government does not depend upon the amount of money appropriated. The United States can no more discharge its contracts by part performance than can an individual do so. Congress may fail to appropriate money due to a creditor in whole or in part, and leave the public officer without authority to pay him. But the liability remains. Questions of salary are questions of contract and when the salary is fixed by law the government contracts to pay that amount to thé incumbent of the office and is not discharged therefrom by the payment of a part only.

In French v. U. S., 16 U. S. Ct. Cl. 419, it was held, Drake, Chief Justice, writing the opinion: When the Act of 1879 appropriated only $3,600 for the claimant’s salary, with no declaration that that sum should be in full compensation for his services for the fiscal year for which the

*515appropriation was made, and with no clause repealing acts inconsistent or in conflict' with the provisions of this act, the reduced appropriation did not in any degree affect the law establishing the claimant’s salary at $5,000 nor his right to recover that sum. It was simply a case of inadequate appropriation to meet an existing legal obligation.” Citing the Graham Case, 1 U. S. Ct. Cl. 380; Collins Case, 15 id. 22; Briggs Case, id. 48; Trust Co., 16 id. 19.

Graham’s Case, 1 U. S. Ct. Cl. 381, was a case where Congress appropriated a sum less than the amount of the salary established by law for the office which the claimant held. It was determined that the claimant was entitled to the full amount of the established salary.

A failure by Congress.to appropriate the full amount of the rent reserved in a valid lease does not imply a new lease, nor relieve the government from liability for the rent reserved in the old lease. Freedman’s Bank Case, 16 U. S. Ct. Cl. 19.

My .deduction from those authorities is that the State is liable.

The Legislature by definite act conferred upon the justices of the Appellate Division power, to appoint and fix the, salary of the claimant. It is not suggested that the justices acted unwisely or abused the discretion given them, nor that the compensation contracted by them to be paid to the claimant was not reasonable and just. It is not claimed that the Legislature did not have power to delegate this authority and vest in the justices a discretion as to the amount to be paid for the services to be rendered. It is the same, in effect, as though the Legislature itself appointed the claimant at a specified salary of $4,500 a year. Can it be maintained that the Legislature, having appointed an officer at- a definite salary mentioned in an act, can escape compliance with the act and pay him the sum agreed, without repealing the law, by an insufficient appropriation? Suppose the State needed a man of technical knowledge or rare attainments to do some peculiar or special work for it and agreed to compensate him in a definite sum as salary for the work to be done. The Legislature passes an act which becomes a law authorizing the employment of such a person and contracts and agrees with *516him for '{he payment of a specific sum. Can the State escape liability by the Legislature’s appropriating an insufficient amount to pay him? Surely it cannot. It would come within the constitutional inhibition impairing the obligation of contracts. The same reasoning if carriéd to an extreme conclusion would permit the Legislature to cut down the salaries of State or constitutional officers by an insufficient appropriation whibh would be reductio ad abmrdum.

The Legislature could have revoked the authority conferred or specified the salary which the claimant should be paid. In my opinion it did neither. The State can no more escape the obligation of its contracts legally entered into than an individual. The State having authorized the appointment of claimant at a salary to be fixed by the justices, the justices having fixed the salary and the claimant having performed services for the contracted salary, the State is liable for the salary it agreed to pay, until the law is repealed or changed.

There being no dispute as to the amount the claimant is entitled to, I am of the opinion that judgment should be given in the sum of $1,420.14 and against the State for the amount.

Judgment dismissing claim.