[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 219 The main questions concern the limits of the power of the Board of Estimate of the city of New York to fix salaries paid from the city treasury.
The position of clerk to a justice of the Municipal Court of the city of New York was created by chapter 235 of the Laws of 1929, which provides as follows: "There shall also be a clerk to each justice of such court. Such clerk and his successors shall be appointed by such justice and shall hold office during the pleasure of such justice. The salaries of such clerks shall be fixed by the board of estimate and apportionment of such city." On January 1, 1938, the powers of the Board of Estimate and Apportionment became vested in its successor, the Board of Estimate. (New York City Charter, effective Jan. 1, 1938, § 957.)
In the budget of the city for 1938 the salary of a clerk to a justice of the Municipal Court was fixed at $3,240 a year by the 1937 Board of Estimate and Apportionment. The validity of this budget was upheld in Dixon v. LaGuardia (277 N.Y. 84). On the day that case was decided (February *Page 221 28, 1938), the then Board of Estimate adopted a resolution which in part is as follows:
"Resolved, that, pursuant to the provisions of sections 67 and 68 of the New York City Charter, the Board of Estimate does hereby fix salaries and create, abolish and modify positions and grades of positions as appearing in the Budget voted upon by the Board of Estimate and Apportionment on October 29, 1937, in accordance with the schedules hereto attached, such modifications to take effect as of March 1, 1938; * * *
"MUNICIPAL COURT
Estimate No. 70
Code Line
No. No. Eliminate Substitute
2945 15 Clerk to Justice
68 at $3240 — 68 at $1200 —
$220,320. $81,600."
Under this form the 68 clerks to the justices of the Municipal Court have been paid at the rate of $1,200 a year since March 1, 1938. They brought this proceeding to compel payment of their salaries from that date at the budgetary rate of $3,240 a year. Not all of them stand in the same position. Eleven were appointed in 1938 at salaries less than $3,240 a year. Twenty-nine at one time or another after March 1, 1938, failed to protest payment of their salaries at the $1,200 rate. The situations of these forty petitioners do not, however, require separate consideration if the Board of Estimate had power to adopt the resolution of February 28, 1938. In that case, none of the petitioners can prevail.
This first question entirely turns on the construction of section 68 of the new charter which had no analogue in the old charter. Section 68 provides: "Creating, Abolishing or Modifying Positions and Grades. The board of estimate may at any time, subject to the provisions of this charter and of the civil service law and except as otherwise provided by statute, create, abolish or modify positions and *Page 222 grades of persons paid from the city treasury." No claim is made that any conflicting provision of the Civil Service Law (Cons. Laws, ch. 7) or other statute is here applicable.
As appellant on this branch of the case, the city takes the ground that section 68 within its limits is authority to the Board of Estimate to increase or reduce — as and when it chooses — any of the thousands of budgetary salary items, so long as the total amount of a budget is not exceeded. We think the words of section 68 would not be so understood by ordinary people — or for that matter even by those who may be able to read the section by the lamp of technical knowledge of the complexities of municipal budget making. Neither the position nor the grade of any person in the service of the city would be either created orabolished were his salary changed. The whole idea of the city's argument at this point is that the phrase "modify positions and grades of persons" means "reduce the salary of any person." We feel safe in the conviction that so forced a construction would add to the text of section 68 something that cannot reasonably be found there. The collateral provisions of the charter and of the Administrative Code referred to by Judge RIPPEY fortify this conclusion. We have no doubt that the courts below rightly held that section 68 empowers the Board of Estimate to create, abolish or modify positions only when it adopts a budget.
It follows that the budgetary rate of $3,240 is still in force and so we pass to the cases of the eleven petitioners who were appointed in 1938 at lesser salaries.
The budget became effective January 1, 1938. Except as to elected officials, it provided that any vacancy then existing or occurring thereafter should be filled only when the head of the department, board, bureau or office had authority from the Director of the Budget in the form of a written certificate "specifying the manner in which such vacancy is to be filled and the rate of compensation to be paid." It also provided that the Comptroller should not pay the salary of any person appointed after January 1, 1938, unless there was on file in his office such a certificate *Page 223 of the Director of the Budget, "and then only at the rate of compensation stated in the certificate." Pursuant to such certificates issued to the Municipal Court, the eleven petitioners in question were appointed, seven at an annual salary of $2,000, four at an annual salary of $1,200. On the supposed authority of Whitmore v. Mayor (67 N.Y. 21) the Special Term ruled that the only measure of their compensation was that fixed by the budget. The Appellate Division reversed that ruling and held that none of them was entitled to more than the salary at which he was so appointed. This issue is before us for review on the cross-appeal of ten of the aggrieved petitioners. We think the Appellate Division correctly disposed of it.
The salaries of the eleven petitioners were not fixed by statute. (Cf. Whitmore v. Mayor, supra; People ex rel. Bacon v. Board of Supervisors, 105 N.Y. 180.) As has already been observed, chapter 235 of the Laws of 1929, which created the office of clerk to a justice of the Municipal Court, granted full power to fix the salary to the Board of Estimate and Apportionment. The regulations respecting the filling of vacancies were put into the budget by that Board. These, we think, were a reasonable method for exercise of its salary-fixing power. (See People ex rel. Plancon v. Prendergast, 219 N.Y. 252. ) The petition does not allege that the Director of the Budget acted arbitrarily or without reason. Under the circumstances, our judgment is that each of the eleven petitioners should have only his appointed salary.
For the reasons stated by Judge RIPPEY the petitioners who failed to sign their payrolls under protest cannot have relief.
The order of the Appellate Division should be affirmed, without costs.