[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 267 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 270 The decision of April 11, 1882, was upon the following opinion: The relator's compensation was declared by section 43, of the "Act to reorganize the local government of the city of New York" (Laws of 1873, chap. 335), to be the amount then "legally paid" to such officer, and this amount is also declared to be the "salary and compensation fixed for his office" under that act.
It would then appear that the salary is annexed to, or is an incident of, the office, and the relator entitled to it so long as he possesses the title to the office. It is not only fixed by statute, but the same laws provide (§ 43, supra) that the commissioners may "fix the salary and compensation of such clerks other than policemen," whom they may be authorized by law to appoint, and therefore by implication, forbids them to enlarge or diminish the salary of one of the excepted class. (The People,ex rel. Satterlee, v. The Board of Police, 75 N.Y. 38.)
His title to the office is not denied, and it is conceded that his salary is fixed by statute, but the respondents claim that, as by sickness "he was disabled from rendering service, he thereby lost the opportunity of earning the compensation so provided, and thereafter was entitled to no salary." The argument puts the claim upon a very different foundation from that afforded by the statute. In the one case, service; in the other, title. Upon principle there would seem to be no reason for this substitution. Nor is it warranted by the statute (supra). Under section 41 he might be removed from office for cause, after notice and examination, or under section 42, retired from office for disability incurred in the performance of duty. *Page 271
Neither of these events has happened to the relator. He is still a member of the police force, but a portion of his salary is denied to him under rules and regulations adopted by the respondents. By these rules, deductions are in effect made from the salary when the policeman is detained from duty by reason of sickness or injury caused by the discharge of police duty.
In the case before us the relator was absent under "sick-leave," made necessary, as he claims and as the case tends to show, by reason of injuries received by him while executing the duties of his office. The action of the commissioners is sought to be justified under section 41 of the act of 1873 (supra), which provides that "The government and discipline of the police department shall be such as the board may, from time to time, by rules and regulations, prescribe," and section 50 of the same act, which empowers the board in their discretion, to enact, modify and repeal "orders, rules and regulations of general discipline of the subordinates under their control but in strict conformity to the provisions of this act."
They relate, however, to instances of misconduct, or omission of duty, to those acts of the officer which may be termed offenses, or conduct calculated to impair the efficiency of the force and therefore deserving of punishment, and not to the involuntary failure of the officer to meet the requirements of the law by reason of sickness or disability caused by an unusual effort, or by the performance of duty assigned to him. This is apparent from the context of section 41, which forbids removal of the officer until after written charges. Lighter punishments may be prescribed by rule or regulation, but the extreme penalty only after notice. So long as the relator possesses the office, we think he is entitled to his salary. The cases (Conner v.Mayor, 5 N.Y. 285; Smith v. Mayor, 37 id. 518; Dolan v.Mayor, 68 id. 274; 23 Am. Rep. 168, and McVeany v. Mayor,80 N.Y. 185; 36 Am. Rep. 600) cited by the respondents have no application to the question before us. None of them decides that an incumbent of a public office, entitled to an annual salary, can be deprived of any part of it by an authority which *Page 272 did not fix the salary, and which is prohibited from doing so, or that any part of it can be withheld from him by reason of his involuntary disability to perform the duties of such office. The salary "fixed for his office" has not been paid to, nor has his place been filled by, another. These, or like circumstances were in the cases cited, and in the later one of Terhune v. TheMayor (88 N.Y. 247).
The conclusion at which we have arrived will not, as the respondents apprehend, interefere with the exercise of power given by section 42, above referred to. The relator holds his office subject to the provisions of that statute, and will have no cause for complaint, if under circumstances to which it applies, he should be retired from office.
The orders of the Special and General Terms should be reversed, and writ of mandamus allowed.