This case involves the compensation payable to sixty-eight clerks to the justices of the Municipal Court of the City of New York. Of this number, fifty-seven were appointed to their positions prior to January 1, 1938, at a salary of $3,240 per year; seven were appointed to existing vacancies between January 1, 1938, and March 1, 1938, upon certificates of the Director of the Budget that the vacancies might be filled and that a $2,000 *Page 227 per year salary only could be paid; and four were appointed after March 1, 1938, upon certificates of the Director of the Budget under a resolution by the Board of Estimate of the City of New York, passed on February 28, 1938, that a salary of $1,200 per year only should attach to the position. By the same resolution of the Board of Estimate the salaries of the other sixty-four were reduced to $1,200 per year each. This proceeding is brought to compel restoration of the salary of $3,240 to each position and for recovery by incumbents of the difference between that salary and the $1,200 which the city has paid.
It was held by the Special Term that any of the petitioners who had received the $1,200 salary and had failed to sign the payroll under protest, as required by section 93c-2.0 of the Administrative Code of the City of New York, could not maintain an action to recover the difference between the amount received and the amount of salary attaching to the position for the period covered by the particular payroll not protested and, as to that portion of the order, the Appellate Division has affirmed. The Special Term further held that, except so far as petitioners had failed to protest the amounts received, each was entitled to recover the difference between the amount received from the city and the pro rata amount which he was entitled to receive at the salary of $3,240 per year. The Appellate Division modified so much of that portion of the order of the Special Term as applied to ten occupants of the position of clerk appointed subsequent to January 1, 1938, to fill vacancies then existing, and, as to them, held that they were entitled only to the salary as fixed by the Budget Director as to six and by the Budget Director upon the resolution of the Board of Estimate as to four. By cross-appeals the parties are severally bringing up for review those portions of the order of the Appellate Division by which they are adversely affected. I am of the opinion that the order of the Special Term was, in all respects, correct.
Under section 93c-2.0 of chapter 5 of the Administrative Code of the City of New York (Laws of 1937, ch. 929, in *Page 228 effect January 1, 1938), each person receiving a salary from the city treasury is required to sign and receipt the payroll. It is further provided that any such person who shall "sign the receipt upon such payroll as having received the amount therein mentioned in full payment for services rendered by him for the entire time specified in such payroll, shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due to such person from the city for the period covered by such payroll, unless at the time of signing such payroll the person receiving such wages or salary shall write legibly thereon in connection with his receipt that the amount received is received under protest." In Quayle v. City of New York (278 N.Y. 19) we held that section 149 of the old charter (Laws of 1901, ch. 466, as amd.), being the same as section 93c-2.0 of the Administrative Code, if constitutional, must be enforced according to its terms, notwithstanding the salary of plaintiff, a sheriff, was fixed by statute, and in Matter of Shevlin v.LaGuardia (279 N.Y. 649) we held that section 149 was constitutional and was applicable to Supreme Court attendants. The same conclusions must necessarily follow as to the constitutionality of section 93c-2.0 of the Administrative Code and as to the application of its provisions to the petitioners here.
The position of clerk to each justice of the Municipal Court of the City of New York was created by the State Legislature in chapter 235 of the Laws of 1929. By that act it was further provided that power of appointment should reside in the justice and that the appointee of each justice should hold office during his pleasure but that the salary of the clerk should be fixed by the Board of Estimate and Apportionment of the city. By the provisions of section 957 of the new charter (in effect January 1, 1938) the Board of Estimate became the successor of the Board of Estimate and Apportionment. Acting upon the legislative mandate, on at least eight successive occasions the Board of Estimate and Apportionment determined that the requirements of the position commanded a salary of $3,240 *Page 229 per year. During the latter part of 1937 the salary of each of the sixty-eight positions was duly fixed by the Board of Estimate and Apportionment for the year 1938 and for the first six months of 1939 at $3,240 per year, and such salaries became a part of the budget duly adopted for that period.
The first attempt that was made to reduce the salaries of the clerks then in office was made on January 3, 1938, when the Board of Estimate passed a resolution fixing the salary for the office at $2,000 per year. Such resolution was ineffective to accomplish the purpose of reducing the salary from the amount fixed in the budget adopted in December, 1937. (Dixon v. LaGuardia,277 N.Y. 84.)
Next, as to each appointee to fill a vacancy in the office of clerk, it was asserted and still is insisted that he must secure a certificate from the Budget Director fixing his salary and authorizing his appointment. The 1938 budget provides that a vacancy can be filled only upon application of the head of the department, board, bureau or office to the Budget Director, who may, in his discretion, grant the application and fix the salary to be paid to the appointee or deny the application. If the application is granted he must issue his certificate in which he names the appointee and fixes his salary. The Comptroller is forbidden to authorize the payment of salary to any such appointee unless and until such a certificate is filed with him. The defendants seek to maintain that appointments made after January 1, 1938, to fill vacancies in the office of clerk to justices of the Municipal Court must follow the procedure there outlined and that no appointee may receive any greater salary than that authorized in the Budget Director's certificate. The power to fill a vacancy in any one of those positions resides exclusively in the justice who is without a clerk owing to the existence of such vacancy. The Legislature gave no power to the Budget Director to determine whether such vacancy should be filled or whom should be appointed or to fix or reduce the salary of an appointee or to the Board of Estimate or to the budget *Page 230 makers to delegate any such authority to him. Furthermore, the justice of the Municipal Court is not the head of a department, board, bureau or office within the meaning of those provisions. The Municipal Court is a continuation of what was formerly the District Court of the City of New York (Worthington v. LondonG. A. Co., 164 N.Y. 81), and clerks to the justices are judicial officers, not city employees (Whitmore v. Mayor,67 N.Y. 21) to whom alone those provisions of the budget, if valid, relate.
Finally, defendants rest upon the resolution of the Board of Estimate, passed on February 28, 1938, whereby all salaries for the position of clerk to the justices of the Municipal Court as contained in the 1938 budget were eliminated and a new salary for each of the positions of $1,200 per year as of March 1, 1938, was substituted. The salaries for several hundred other positions were increased or reduced or the positions abolished. The resolution, as far as it went, was in effect the making of a new budget by the Board of Estimate alone without resort to the budget-making machinery provided for in sections 952 and 111-126, inclusive, of the charter. Authority is claimed to be found for that procedure in sections 67 and 68 of the new charter.
With certain exceptions not here pertinent, section 67 vests power in the Board of Estimate to fix the salary of every officer or person whose compensation is paid out of the city treasury. It relates only to the compensation to be paid to city employees. As to clerks to the justices of the Municipal Court, the section, if applicable at all, extends no new power to the Board of Estimate or any power different or more extensive than that given to that Board by the statute creating the position. The salaries to be paid were incidental only to the positions created by the Legislature. They followed and became part of the positions themselves. When the Legislature left it to the Board to fix the salaries the Board was required to act in such a way as to provide adequate compensation for the clerks. The Board could not, in the face of the expressed purpose of the Legislature to provide a clerk for each justice, *Page 231 practically nullify that purpose by fixing the salary at so small a sum that the justice would be unable to secure a competent clerk. The Board of Estimate, taking office January 1, 1938, derived no power to set aside the provisions of the budget fixing such salaries by virtue of any provision of section 67 of the new charter.
Neither did the provisions of section 68 give the Board any power to fix, modify or reduce such salaries so fixed by the budget. That section reads as follows: "Creating, abolishing ormodifying positions and grades. § 68. 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 grades of persons paid from the city treasury." Neither by words nor by necessary inference does it authorize the fixing, increasing or reduction of salaries already fixed in the current budget for positions named therein. By its express words it authorizes the Board, where it is applicable at all, only to "create, abolish or modify positions and grades of persons." Power was conferred to createnew positions and grades of persons, and when that was done the Board, under section 67, was given the power to fix salaries therefor. That it does not provide for or contemplate the creation of any power to increase salaries fixed by the current budget for positions provided for therein is clearly and conclusively shown by the fact that under section 67-2.0 of the Administrative Code the Legislature separately gave that power to the Board. It was not an emergency measure and it creates no emergency powers.
So far as the provisions of sections 67 and 68 have to do with the fixing of salaries, when read, as they must be, in connection with the provisions of the charter relating to the preparation and making of the budget and of the Administrative Code and having in mind the purposes of the budget when finally adopted, they relate only to the fixing of salaries for positions at the time of the preparation of the budget providing for those positions in connection with the *Page 232 implied power under section 125, and then only subject to action by the Council and by the Mayor under sections 124 and 125, or for new positions created at any time after the adoption of a particular budget and before the adoption of its successor for a subsequent year. It cannot be presumed that the intent and purpose of those sections was to enable the Board of Estimate, in practical effect, at any time to nullify the purpose designed to be accomplished by the careful, well-considered and laborious preparation of the budget and thus to abrogate or hold at nought those provisions of the charter setting up the budget-making machinery (Cf. Schieffelin v. Leary, 219 App. Div. 660) or to make salaries attaching to positions duly created in a definite budget for a definite and predetermined period subject to adjustment, upwards or downwards, from time to time, or at any time, as the occasion or the whim or caprice of a Budget Director or the Board of Estimate might suggest. To hold otherwise would mean that the Board of Estimate alone could overthrow a budget completely the day following its effective date or at any subsequent time and thereby nullify the purpose and effect of the executive budget, the right of the public to notice and to be heard when positions are established and salaries fixed and the authority of the Mayor and the Council over such positions and salaries after the Board of Estimate has done its work. I am not prepared to accept any conclusion that makes the provisions of the charter for the preparation, adoption and finality of the budget so meaningless.
The order of the Appellate Division, in so far as it modified the order of the Special Term, should be reversed and, as so modified, the order appealed from and the order of the Special Term affirmed, with costs to the petitioners in this court and in the Appellate Division.
CRANE, Ch. J., LEHMAN and HUBBS, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in part in opinion, in which O'BRIEN, J., concurs; RIPPEY, J., votes for modification in separate opinion. (See 280 N.Y. 707, 846.)
Order affirmed. *Page 233