Green v. Mayor

8 Abb. Pr. 25, 2 Hilt. 203

Opinion

By the Court.

*—Brady, J.

In this case the theory of the defence is, that the Corporation having no funds to pay the plaintiff’s claim, and no power to raise it in presentí, they are not liable. That the Legislature has imposed upon them a pecuniary obligation without giving them the means of discharging it; and that compulsory process should not, therefore, be issued against them. The power of the Legislature to increase the salaries of the justices of the district courts was not questioned on the argument—it could not well be. (People a. Warner, 7 Hill, 81, 82 ; S. C., in error, 2 Den., 272, 281; Connor a. The Mayor, 1 Seld., 285, 296.) The act, therefore, pro-Tiding for such increase was valid, and the obligation imposed on the defendants binding. Having arrived at this result, the question which presents itself is, Whether, in answer to the obligations thus imposed and sought to be enforced, the defendants have presented a legal defence? I think not. Assuming the fact to be, as alleged in the answer, that the defendants had no fund out of which the increase could be paid, and admitting that the act increasing the salaries did not itself, by its own terms, confer any power to create a fund to meet such increase, that fact does hot discharge the defendants from liability. When a power is given by statute, every thing necessary to make it effectual or requisite to attain the end is implied. (Stief a. Hart, 1 Comst., 30; 1 Kent's Com., 464, 5 ed.) So, where the law commands a thing to be done, it authorizes the performance of whatever may be necessary for executing its commands. (Foliamb’s case, 5 Coke, 116.)

The defendants, however, say that, by the charter of 1857 (1 Laws of 1857, 885), they are prohibited from borrowing any money except in anticipation of the revenue of the year in which such loan shall be made, unless authorized by a special act of the Legislature; that the tax-bill of 1857 (1 Laws of 1857, 159) only authorized the supervisors of the county of Hew York to raise an amount of money for salaries sufficient to pay the salaries of officers payable out of the city treasury at the rates-allowed by law at the time of the passage of the act, and which did not embrace the increased salary of the plaintiff. That the second section of the tax-bill (supra) prohibited the application of the sums thereby to be raised to any other objects or purposes than those for which the supervisors were empowered to raise the same. That the whole revenue of the defendants derived from other sources than that of taxation is pledged by law for their permanent debt. (Davies' Laws, 891.) That the charters of 1830-1849 provide that no money shall be drawn from the treasury until it has been duly appropriated to the purpose for which it is drawn. (Davies' Laws, 202, 205, 207.) That these provisions are continued in force by the charter of 1857, sec. 31; and that a payment by the defendants out of the moneys authorized to be raised by the supervisors by act of March, 1857, would subject the officers making the same to the penalties imposed by section 40 of the charter of 1857. This presents an array of statutes in supposed opposition to the right of the plaintiff to insist upon his salary. But I think they can have no such effect; they were all designed to prevent the people of the city and county of Hew York from the usurpations, improvidences, or dishonesty of officers of the Corporation who might feel disposed to be derelict, and for no other purpose: they are guards thrown around the property of the people, but never were designed or intended to prevent the operation of a subsequent statute, passed, it must be presumed, with full knowledge of their existence and purposes. The Legislature having the power, then, to increase the salaries of the justices, and thus to impose upon the defendants a burden, and having done so, all the elements exist which entitled the plaintiff to judgment. The defendants’ liability is fixed by competent authority, and they are subject to the ordinary modes of having legal liabilities enforced. (The People, &c., a. The Mayor, &c., 25 Wend., 680.) I am aware that Judge Ingraham has expressed a different view of this question; but although I entertain profound respect for his opinion, I am constrained to differ from him. I think the liability of the defendants beyond question, and that they are subject to all the legal consequences of that liability. It may be said, perhaps with propriety, that the defendants, although liable, are powerless, and that the plaintiff should be restrained from enforcing his judgment until the time arrived at which they could provide for the emergency by the usual estimate and tax-bill; but we are not called upon to decide such a proposition, or to give it consideration.

The conclusion thus expressed is predicated upon the truth of the averment, that the defendants have no funds out of which the plaintiff’s claim can be paid, and no power to raise money for that purpose. Is this true? On reference to tax-bill of 1857 (supra), authorizing the supervisors to raise money by tax, it will be seen that there are two items for contingencies—one for the county of $80,000 and one for the city of $40,000—and that these form a part of the sum of $3,612,682 to be levied, not only for the object and purposes enumerated, but “ for such other expenses as the mayor, alder: :en, and commonalty of the city of Hew York may be put to by law.” And it appears by the defendants’ answer, that the items of the bill compose an estimate of the probable amount of tax required for the year, and furnished by the comptroller of the city of New York, as required by ordinance of May 30, 1849. The defendants do not aver that they have no property out of which the plaintiff’s claim could be made, but, reposing upon the disabilities created by the statutes mentioned, say that they have no money in the treasury out of which they are authorized to pay. They do not allege that the county and city contingencies are either exhausted or will be required for purposes other than salaries, but they assume that the sum of $412,500 levied for salaries, and which would be required for that purpose without reference to the increase of the salaries of the justices, is the only fund appropriated that can be touched to pay the plaintiff’s claim. We have seen that the tax-bill of 1857 appropriates the sum of $3,612,682 to the payment of certain sums estimated to be necessary for certain purposes, and also for such other expenses as the defendants may be put to by law. And we have also seen that the increased salary of the plaintiff was an expense to which the defendants were put to by law. Can there be a doubt that the act of the Legislature increasing the plaintiff’s salary is an appropriation of the defendants’ funds for that piurpose; or that the defendants, under the general power to pay “ such other expenses as they may be put to by law,” would have the power, out of any contingent fund or any surplus over the estimates, to pay the plaintiff? I think, clearly not; and that there is no such contingent fund, and that there was or would be no such surplus, does' hot appear. It is my opinion, for these reasons, that the averment of the defendants, that they have no fund out of which they are authorized to pay the plaintiff, is not sustained ; and that the judgment on that ground, as well as upon the question first considered, should be affirmed.

Present, Daly, F. J., and Brady and Hilton, JJ.