author:
Conway, J.
      Desmond, J.

text:
    In the Matter of Felix C. Benvenga et al., Respondents, against Fiorello H. La Guardia et al., Constituting the Board of Estimate of the City of New York, Appellants.
    Argued April 20, 1945;
    decided July 19, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (William S. Lebwohl of counsel), for appellants.
    I. Section 143 of the Judiciary Law clearly delegates to the Board of Estimate the power to increase or reduce additional compensation. The Legislature recognized this power and limited its exercise by providing in section 142 of the Judiciary Law a minimum additional compensation of $7,500 per annum. (General Construction Law, § 34; Leach v. Auwell, 154 App. Div. 170; Matter of Abrams v. LaGuardiu, 287 N. Y. 717; Matter of McCarthy v. LaGuardia, 283 N. Y. 701; Matter of Wingate v. McGoldrick, 279 N. Y. 246; Matter of Hetherington v. McGoldrick, 279 N. Y. 687; Matter of Rosenthal v. McGoldrick, 279 N. Y. 688; Matter of Martin v. Hylan, 213 App. Div. 519; Matter of Moskowitz, et al. v. La Guardia, 183 Misc. 33, 268 App. Div. 918, 294 N. Y. 830.) II. The 1939 reduction of additional compensation for justices thereafter elected was reasonable and valid in all respects. It was the only possible method for reducing judicial compensation in accordance with the rule established by section 19 of article VI of the Constitution. This section clearly indicates that reductions in compensation for justices may be made and are lawful, provided only that such reductions do not become effective for any justice during his term of office. (People ex rel. Morris v. Edmonds, 15 Barb. 529; People ex rel. Mitchell v. Haws, 32 Barb. 207; People ex rel. Noble v. Mitchell, 220 N. Y. 86; O’Donoghue v. United States, 289 U. S. 516; Williams v. United States, 289 U. S. 553.)

      Samuel D. Smoleff for Citizens Union of the City of New York, amicus curiæ, in support of appellants’ position.
    I. There is a clear and long-recognized distinction between the obligatory payments provided for by section 142 of the Judiciary Law,- and the discretionary payments authorized by section 143. (Richmond Co. Gas-Light Co. v. Middletown, 59 N. Y. 228.) II. The transitional disparity in salaries between incumbent and future justices is not a “ classification ” of justices and does not create any legal lack of uniformity. (Finn v. City

      of New York, 282 N. Y. 153; Yakus v. United States, 321 U. S. 414.) III. Section 143 of the Judiciary Law should be interpreted as vesting authority and discretion in the Board of Estimate of the City of New York to grant or withhold additional compensation, subject to constitutional limitations in respect to salaries of incumbent judicial officers.

      John W. Davis and William R. Meagher for respondents.
    I. Section 143 of the Judiciary Law does not delegate to the Board of Estimate the legislative power either to reduce the additional compensation fixed and payable to justices of the Supreme Court resident in the first and second judicial districts or to reclassify those justices in respect of that compensation. (Hyatt v. Taylor, 42 N. Y. 258; Wm. B. Astor v. Mayor et al., 62 N. Y. 567; Whitmore v. Mayor, 67 N. Y. 21; Polhemus v. F. R. R. Co., 123 N. Y. 502; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; Matter of Thomas, 216 N. Y. 426; People v. Fitch, 89 Hun 310; People ex rel. Smith v. Gilon, 66 App. Div. 25; Williams v. Eggleston, 170 U. S. 304; Matter of LaGuardia v. Smith, 288 N. Y. 1; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377; Kelly v. Merry, 262 N. Y. 151; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Abrams v. LaGuardia, 174 Misc. 421, 262 App. Div. 724, 287 N. Y. 717.) II. The power to increase does not include the power to reduce. (Matter of Black v. O’Brien, 241 App. Div. 639, 264 N. Y. 272; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; People v. Klinck Packing Co., 214 N. Y. 121; Matter of Poughkeepsie Bridge Company, 108 N. Y. 483; Freeney v. Brown, 182 Ga. 818; Best v. Maddox, 185 Ga. 78; In re Breidenbach, 214 Wis. 54; Booth v. United States, 291 U. S. 339; Commonwealth v. Mann, 5 Watts & S. [Pa.] 403.) III. The power to reclassify has not been delegated. (Cane v. Mayor of City of New York, 34 N. Y. S. 675; Beach v. Kent, 142 Mich 347.) IV. Section 142 of the Judiciary Law does not recognize expressly or by implication power in the Board of Estimate to reduce the additional compensation fixed and payable to justices of the Supreme Court resident in the first and second judicial departments. (Matter of Martin v. Hylan, 213 App. Div. 519; Matter of Moskowitz v. LaGuardia, 183 Misc. 33, 268 App. Div. 918, 294 N. Y. 830.) V. The attempted reduction violates the continuing equalization of the compensation of justices and surrogates required by section 178 of the Judiciary Law. VI. The attempted reduction is arbitrary and capricious and denies the equal protection of the laws in violation of the Constitution of this State. (Hurtado v. California, 110 U. S. 516; People ex rel. Hoelderlin v. Kane, 79 Misc. 140; Hartford Co. v. Harrison, 301 U. S. 459; Mayflower Farms v. Ten Eyck, 297 U. S. 266; Nashville C. & St. L. Ry. v. Walters, 294 U. S. 405; People v. Orange County Road Cons. Co., 175 N. Y. 84; People v. Cohen, 272 N. Y. 319; Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Raich, 239 U. S. 33; Truax v. Corrigan, 257 U. S. 312; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Internat. Steel Co. v. Surety Co., 297 U. S. 657; People ex rel. Doscher v. Sisson, 222 N. Y. 387.)
   Conway, J.

The city has appealed from an order of the Appellate Division, issued under article 78 of the Civil Practice Act upon the petition of seventeen justices of the Supreme Court of the State of New York (hereinafter referred to as justices), which invalidated a resolution adopted by the Board of Estimate on November 2, 1939. The resolution provided: “ That the Board of Estimate, pursuant to law, hereby reduces by two thousand five hundred dollars ($2,500) per annum, and fixes at $7,500 per annum the additional compensation payable to the justices of the Supreme Court for the counties within the City of New York, included within the First and Second Judicial Districts, to the Judges of the Court of General Sessions of the County of New York, and to the Surrogates and to the Judges of the County Courts of the counties within the City of New York, hereafter appointed or elected, including those elected upon the expiration of their present terms of office; * * * . ” The justices were all elected thereafter. The order appealed from directed payment of additional compensation to them at the rate of $10,000 per annum, that being the rate in effect before the adoption of the resolution.

Article VI, section 19, of the New York State Constitution provides, insofar "as relevant here: “ All judges, justices and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office.” A similar provision is contained in article III, section 1, of the Constitution of the United States.

The question for our determination is whether the city possessed the power to make the reduction attempted. The matter of noninterference with the compensation of the judiciary, once it has been fixed by constitution or statute, has been a matter of extended consideration and discussion by the People since we became a nation. (See The Federalist, Vol. II, p. 107, McLean’s edition, New York, MDCCLXXXVIII [Hamilton].) In discussing it there, Alexander Hamilton had occasion to say: In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” (Emphasis in original.) It has been considered of such importance in this instance that the governing bodies of the Association of the Bar of the City of New York, of the New York County Lawyers Association and of the Brooklyn Bar Association have directed their respective presidents to indorse upon the petition herein the support by those associations of petitioners’ demand, and that has been done. In view of that, we shall go more into detail in this opinion than would ordinarily be necessary.

Justices of the Supreme Court are State officers whose compensation must be prescribed by the Legislature, subject to the constitutional provision quoted, supra (Freund v. Hogan, 264 N. Y. 203). The Legislature may confer limited authority to pay additional compensation to such justices and that power has been recognized and exercised since 1852 (The People v. Edmonds, 15 Barb. 529). No attempt under the first enactment delegating such power (L. 1852, ch. 374), nor under any subsequent act, looking toward a reduction of compensation, was ever attempted prior to the action complained of here in 1939.

Following the constitutional revision of 1925, there were added and amended sections 142 and 143, respectively, of the Judiciary Law. Section 142 was added in 1926 (L. 1926, ch. 155); section 143 was amended in 1928 (L. 1928, ch. 818).

The applicable portion of section 142 is as follows: “ Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as they are now receiving therefrom * * * The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed.”

Section 143, as amended in 1928, so far as pertinent here, provided: The board of estimate and apportionment of the city of New York may provide for the raising by tax, and for payment to the justices of the supreme court resident in the first and second judicial districts, to the judges of the court of general sessions of the county of New York, to the surrogates and to the judges of the county courts of the counties within the city of New York, or to the justices, judges or surrogates of any of such courts, of such additional compensation as such board may deem proper.”

The order of the enactment of the two sections is important. Section 142 continued the additional compensation the justices were receiving. Section 143 conferred power to provide further additional compensation. There was no provision for the reduction in the additional compensation when voted but only the provision in section 142 that that section should apply to the justices now in office and to those hereafter elected or appointed.” In other words, justices thereafter elected were to receive such additional compensation as justices previously elected might receive. To construe the language employed otherwise would disregard the idea of continuity clearly expressed in the words “ shall continue ” and would strike out the words shall continue to receive ” and write in their stead “ shall receive ”. We may not rewrite the statute. To put the emphasis on the word “ now ” in the first half of the sentence of section 142: “ The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed ” and to disregard the expression of futurity in the word “ hereafter ” in the latter half is to fail to give appropriate weight to the requirement that individual words should be construed in their setting with their context as. background. In this instance the appropriate interpretive section of General Construction Law is section 48, reading: “Tense, present. Words in the present tense include the future.” That is the interpretation to be made “ unless the general object of the statute, or the context of the language used, indicates that a different meaning is intended.” (Matter of Hammond v. City of Fulton, 220 N. Y. 337, 342. See to same effect People ex rel. Martin v. Hylan, 213 App. Div. 519; affg. on opinion of Cropsey, J. at Special Term; Matter of Moskowitz v. La Guardia, 183 Misc. 33, affd. 268 App. Div. 918, affd. 294 N. Y. 830.) Clearly section 142 applied not only to the time when the statute was enacted but to the future and until the statute was changed. The very language of the statute evidences the legislative desire to assure a non-discriminatory and an unreduced compensation to all the justices elected in the first and second districts. The statute is to be read as a continuing one which speaks anew during each year of its existence and thus provides for a continuance of additional compensation as it is fixed by the board. That additional compensation as and when provided must be paid, in the very words of the statute, to the justices now in office and to those hereafter elected or appointed.” There was thus to be a continuance in the receipt of additional compensation by “ those justices elected in the first and second judicial departments ” — not by some of them.

The justices were classified only on the basis of residence. They were spoken of collectively and as a class, not as individuals. The language used referred to “ justices, judges or surrogates of any of such courts ” not to any of the justices, judges or surrogates of such courts. There was the provision that the section should apply “ to the justices now in office and to those hereafter elected or appointed.” There was to be equality between those in office and those to be incumbents later. There was to be no reduction in compensation for some. Section 143 was amended as a companion statute, to the 1928 amendment of section 142' but enacted first (L. 1882, ch. 40, § 1108; L. 1926, ch. 155; L. 1928, chs. 818, 819). The two sections are to be read together. When appropriate action was taken under section 143, section 142 made the continuance of such action obligatory to “ those justices elected in the first and second judicial departments ” then in office and “ to those hereafter elected or appointed.” When the Board of Estimate acted in 1930 to increase the compensation of justices it did so under permission granted by the Legislature. Having exercised the power granted, its action may not be undone by the same or a successor board except by legislative action or authority (Matter of Poughkeepsie Bridge Company, 108 N. Y. 483). Section 142 of the Judiciary Law is a general statute. Having exercised the limited power granted, the board was functus officio. The Legislature may not grant the power to repeal general statutes and, incidentally, made no attempt to do so. (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; People v. Klinck Packing Co., 214 N. Y. 121, 138; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Matter of Black v. O’Brien, 89 N. Y. L. J., p. 3645, June 17, 1933, affd. 241 App. Div. 639, 264 N. Y. 272.) It made no attempt to delegate the power to reduce compensation. We may not imply an attempt to do that which the Legislature was without power to do expressly.

There is nothing new in the fact that authority may be granted to increase the compensation of a justice and authority to decrease it withheld. That is exactly what the People have declared to be their considered policy. In the Constitution of 1894 there was a prohibition against either increasing or decreasing the compensation of a justice during his term of office (art. VI, §§ 12, 15). In 1925 the People amended the Constitution so as to continue the prohibition against a decrease in compensation but struck out the prohibition against an increase. (Art. VI, § 19, quoted, supra.)

Statutes enacted in other States have received similar construction (Freeney v. Brown, 182 Ga. 818; Best v. Maddox, 185 Ga. 78; Petition of Breidenbach, 214 Wis. 54. See, also, Beach v. Kent, 142 Mich. 347).

In Freeney v. Brown (supra), county commissioners, by constitutional amendment, were granted power to provide for additional compensation to certain superior court judges. They did so but on their attempt to withdraw the increase and terminate the payments were held to be powerless so to do. They had been granted an option to act but having acted, had exercised all the power delegated.

So in Best v. Maddox (supra), following Freeney v. Brown (supra), it was held that the county commissioners had no authority to terminate or reduce the supplemental salary voted by them even as to a subsequent term of the judge.

Again in In re Breidenbach (supra), it was decided that a legislative act granting power to a county board to pay additional compensation to certain circuit judges was an “ option ” but that when it was exercised the county board was without power to rescind its action in granting or to withhold the additional compensation granted.

Analogously, the reduction of an increase in compensation is just as illegal as a reduction of the original compensation, when the power to decrease the compensation of a justice does not exist. (Booth v. United States, 291 U. S. 339, 352, citing Commonwealth v. Mann, 5 Watts & S. [Pa.] 403; New Orleans v. Lea, 14 La. Ann. Rep. 197; Long v. Watts, 183 N. C. 99.)

Thus, whether the question has arisen with respect to the power of State Legislatures, as restrained by State Constitutions, or with respect to the power of local bodies, exercising limited grants of power conferred by Legislatures, the answer has been the same in the Supreme Court of the United States and in the State supreme courts of Pennsylvania, Wisconsin, Georgia, Louisiana and North Carolina, viz., that the power to increase judicial compensation does not include a power to' decrease it and that when the power to increase is once exercised, it may not be rescinded or modified without further express constitutional or legislative authority, depending upon the individual instance.

On five separate occasions during a period of nearly one hundred years, the Legislature has enacted legislation permitting the city to provide for additional compensation. In each instance, the authority delegated has been to provide “ such additional compensation as such board may deem proper.” In no instance has there been an express grant of power to the municipal body to reduce the compensation once fixed. Such power may not be implied. The theory that the power to increase compensation necessarily includes the power to take it away has been pronounced unsound. (Booth v. United States, 291 U. S. 339.) Moreover, the withholding on those five occasions of the express grant of power is indicative of legislative intent that the power of reduction should be withheld. (Hyatt v. Taylor, 42 N. Y. 258, 262; Wm. B. Astor v. Mayor et al., 62 N. Y. 567, 578; Whitmore v. Mayor, 67 N. Y. 21, 22; Polhemus v. F. R. R. Co., 123 N. Y. 502, 507; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 522, reversed on another point, 244 U. S. 205; Matter of Thomas, 216 N. Y. 426, 429.)

Indeed the only legislative ' expression during that period upon the subject has been against any reduction of that portion of the additional compensation payable by the city to the justices of the Supreme Court resident in the first and second judicial districts (L. 1932, ch. 637, § 2). That came about as follows. The Governor convened an extraordinary session of the Legislature in 1932, transmitting an emergency message in which he recommended: Legislation permitting the city of New York * * * to reduce any or all salaries novo mandatorily fixed by State statute and payable in whole or in part from the city treasury; * * * ” (Emphasis supplied). The Governor recited in the message that the city had requested that immediate legislation be enacted to enable ” it to effect economies to maintain its credit. (Emphasis supplied.) The Legislature enacted special legislation permitting the reopening of the budget for the year 1933 and granting to the local authorities the right to redetermine the salary of any official whose compensation was paid in whole or in part by the city, not only for the year 1933 but in ‘ ‘ subsequent years during the pendency of the emergency ”. Significantly, the Legislature expressly exempted from the application of the statute the justices of the Supreme Court resident in the first and second judicial districts, notwithstanding the fact that there was no constitutional limitation preventing such action as to justices elected in “ subsequent years during the pendency of the emergency ”. When the emergency legislation was enacted, the justices so exempted were receiving the $10,000 additional compensation now sought to be reduced. The Legislature made no distinction between justices then in office and those thereafter to be elected, although during the five-year period of emergency twenty-two justices (ten resident in the first district and twelve resident in the second district) were elected or re-elected to office.

Chapter 637 of the Laws of 1932, and the proceedings resulting in its enactment, establish beyond dispute the practical construction by the Legislature and the city of Judiciary Law, sections 142, 143, and the 1930 resolution of the board in three respects: (1) the additional compensation of $10,000 per annum was “ mandatorily fixed ” although paid by. the city; (2) the Legislature had reserved to itself and had not delegated to the city, the power to reduce such additional compensation and (3) any reduction would have to be brought about either by the Legislature or by the city with the special permission of the Legislature.

The order should be affirmed, with costs.

Desmond, J.

(dissenting). Article 6, section 19, of the State Constitution directs that the justices of the Supreme Court “ shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office.” From time to time, since the enactment of the Judiciary Act of 1847, the Legislature has made various changes in the salary paid by the State to these justices, the pay rate now in effect being stated in section 142 of the Judiciary Law, which says that each such justice “ shall receive from the state the sum of fifteen thousand dollars per year ” (the State pays an additional amount to justices assigned to the Appellate Division). Besides establishing a State-paid salary, however, the Legislature as long ago as 1852 recognized also that living costs in New York City justified the payment to the justices living therein a somewhat larger total compensation than was allotted to their brethren in other parts of the State (see The People v. Edmonds, 1853, 15 Barb. 529). The Legislature did not deal with that situation by voting the New York City justices any additional sum out of the State treasury but authorized the then Board of Supervisors of New York County (later the City Board of Estimate and Apportionment, still later the City Board of Estimate) to provide for the raising by tax, and for the payment to those particular justices, “ of such additional compensation as such board may deem proper ” (present section 143, Judiciary Law; original provision in L. 1852, ch. 374, held valid in The People v. Edmonds, supra). There is nothing in section 143 or in any of its predecessor statutes passed since 1852, banning downward, as well as upward, changes by the city in the additional compensation The city’s legislative body exercised the power so given it by the Legislature by fixing, from time to time over the years, additional increments of salary for the justices living in New York City. In 1852 the city’s allowance was $1,500 per year. Gradually it was augmented until from 1909 to 1930 the additional amount so provided by the city for each resident justice was $7,500 per year. In 1930 it was further increased to $10,000 per year, thus making the total compensation of each such justice $25,000 per year. That total rate was maintained until 1939. In November of 1939 the Board of Estimate, as part of an effort to reduce city expenditures, passed the resolution which the courts below have, in this proceeding, held invalid. That resolution purported to reduce by $2,500 per year, and thus to set at $7,500 per year, the city-paid compensation of Supreme Court justices residing in New York City (and of certain other judges) hereafter appointed or elected, including those elected upon the expiration of their present terms of office ”. The petitioners are seventeen justices of the Supreme Court, all residing in New York City (some in the first, others in the second judicial district) and all elected for the first time after November, 1939. They bring this proceeding to compel the fiscal officers of the city to pay to each of them not $7,500 per year, as per the November 1939 resolution, but $10,000, the amount that was being paid by the city to justices living therein, before November, 1939. This proceeding, therefore, involves no rights of any justice who held the office by election before that resolution Avent on the books. Petitioners have been successful in both courts below, the Appellate Division, by a 3 to 2 vote, affirming a Special Term order granting the petition.

The substance of the claim of petitioners and of the holdings below is this: that the Legislature has delegated to the NeAv York City Board of Estimate only enough of the legislative salary-fixing power to permit the Board of Estimate to establish the amount of, and to increase, but never to reduce, the city-contributed part of these judicial salaries. That, of course, must mean that any increase of the city-paid increments becomes, as soon as provided for, frozen into laAV forever, fixed beyond the possibility of diminution. Admittedly there is nothing in the Constitution or in the Judiciary LaAV, expressly prohibiting the city from regulating its contribution to these salaries by making a reduction thereof, applicable to future-elected justices only. Indeed, a 1926 amendment (chapter 155 of that year) to section 142 of the Judiciary LaAV suggests that the Legislature recognized that the city would have such poAver under section 143, unless specifically negatived. That 1926 amendment, passed at a time when the city was paying $7,500 per year to each justice, added to section 142 this sentence: “ Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as they are now receiving therefrom ”. That 1926 amendment for the first time put a floor under the city-paid increments of salaries, and of course prevented the city thereafter from fixing its part of the salary at any amount less than $7,500 per year. But a few years later, in 1930, the city, as aforesaid, increased its contribution to $10,000 per year per justice. Petitioners argue that the 1930 increase put a new floor under the city’s rate of contribution. They base this, it seems, on another sentence of section 142. That other sentence, also added to section 142 in 1926, says that the provisions of that section, including of course the other 1926 amending language above quoted, “ shall apply to the justices now in office and to those hereafter elected or appointed.” The argument is that the quoted language amounts tó a continuing mandate of the Legislature to the city, that, as each new justice is elected, he must be paid the same total salary as is being paid, at the time of his election, to the justices already in office. If we accept that as the legislative intent, then petitioners, newly elected to the bench after the 1939 resolution, would have an absolute right to the'same pay as the justices previously serving, and who had theretofore been granted by' the city an increase of $10,000 per year. Such a construction seems unwarranted. The quoted language making applicable to justices thereafter to be elected the other requirement of section 142, that justices shall receive “ such additional compensation as they are now receiving ” means, naturally and reasonably, only that justices elected after 1926 as well as those on the bench before that year, shall have from the city not less than the $7,500 which was being paid by the city in 1926. The phrase “ such additional compensation as they are now receiving ” means. $7,500 per year (see, as to construction of “ now ” General Construction Law, § 34). Nothing found elsewhere in the Constitution or statutes goes any farther than that.

It is urged upon us that the Legislature, empowering the city to pay additional compensation to justices of the Supreme Court, could not reasonably have intended that the power thus given the city should be exercised in such fashion that some New York City Supreme Court justices should receive smaller compensation than others. Such a situation, it is said, is so manifestly unfair and discriminatory that the statutes should be construed so as to forbid it. But the alternative, too, would have a drastic consequence. If the city has to make the same payment to all the justices who make up the court at any given time, then increases are possible, but never reductions, since any reduction as to new justices would always, if enforced, put them into a salary bracket lower than that of their associates who had been elected before the reduction. Thus the city could grant increases, but only at its peril. It is not necessary to agree or disagree with the view expressed by the Special Term opinion herein that “ it is repugnant to sound principles of judicial administration to have justices performing the same functions and carrying the same responsibilities receiving different compensation.” (182 Misc. 507, 511.) The question for us is one of law only. The reduction of any justice’s salary during his term of office is forbidden by the Constitution. No constitutional or statutory provision requires the maintenance of equality of pay among the justices. Discrimination of a sort thus becomes possible, of course, but the kind of discrimination here complained of does not run against any picked individuals or group but is a prospective lowering of salary as to all those, whoever they may be, who shall stand for election and be elected after a stated date. The Constitution itself, forbidding salary cuts for incumbents but authorizing them to be made prospectively, has set up a system whereby any lawfully-made reduction results in new-comers getting less than justices longer in office.

Affidavits in this record show us that the city has in fact (by 1941 and 1942 amendments to the 1939 resolution of the Board of Estimate) set up differences in salaries even among those elected after the passage of the 1939 resolution. But that grouping, which allows the higher ($10,000) city-paid salary to justices assigned to the Appellate Division and to justices re-elected for a second term, even though their current terms began after the resolution took effect, does not touch these petitioners. All we have before us are the rights of these seventeen justices who were elected for the first time after the passage of the 1939 resolution, and none of whom are serving on the Appellate Division. The legality of the exemption from the 1939 resolution, by the 1941 and 1942 modifications, of other groups of justices, is not before us on this appeal. Nor are we here concerned with the salaries of any of the surrogates of the counties making up New York City, or with the proper construction of section 178 of the Judiciary Law, as to “ continuing equalization ” of those surrogates’ salaries with the salaries of Supreme Court justices.

The order should be reversed and the petition dismissed.

Lewis and Dye, JJ., concur with Conway, J.; Lehman, Ch. J., concurs for affirmance on the ground that the express power to increase compensation of justices of the Supreme Court of the First and Second Departments does not by fair inference include an implied power to withdraw in whole or in part an increase which has been granted to all the justices of these departments since any diminution of salary could apply only to justices elected thereafter; Desmond, J., dissents in opinion in which Loughran, J., concurs; Thacher, J., taking no part.

Order affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Bruno Carollo, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Argued June 6, 1945;
    decided July 19, 1945.

      Richard T. Anderson for appellant.
    I. Appellant is not amenable to the provision of section 1942 of the Penal Law. (People ex rel. Marcley v. Lawes, 254 U. Y. 249; People v. Schaller, 224 App. Div. 3; People ex rel. Friedman v. Kaiser, 134 Misc. 786; People ex rel. Robideau v. Kaiser, 134 Misc. 468; People ex rel. Bierbaum v. Jennings, 135 Misc. 809; O’Tier v. Sell, 235 N. Y. S. 537; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; The People, ex rel. v. Kelly, 32 Hun 536, 97 N. Y. 212.) II. Appellant is not a fourth offender. (People ex rel. Marcley v. Lawes, 228 App. Div. 660, 254 N. Y. 249.)

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Orrin G. Judd and Patrick H. Clune of counsel), for respondent.
    I. Habeas corpus is not an available remedy here. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Martine v. Hunt, 294 N. Y. 651; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131.) II. The sentence is legal, proper and mandatory. (People v.
      Richards, 263 App. Div. 586; The People v. Raymond, 96 N. Y. 38; People v. Sickles, 156 N. Y. 541.) III. This proceeding is jurisdictionally defective. Subdivision 4 of section 1258 of the Civil Practice Act requires that in such cases as this, eight days’ notice of the time and place of return of the writ shall be given personally to the district attorneys of the counties wherefrom the relator was committed and wherein he is detained — in this case the counties of Queens and Cayuga. Unless compliance with this mandate is established, the courts have no jurisdiction to sustain the writ and discharge the prisoner. (People ex rel. Saporito v. Warden of N. Y. Penitentiary, 243 App. Div. 450; Matter of Mellor v. Hinkley, 201 App. Div. 619.)
   Lewis, J.

The relator, by writ of habeas corpus, challenges the validity of his sentence as a fourth offender upon the ground that, in determining the basis for such sentence imposed under Penal Law, section 1942, the court erroneously included a prior conviction for an escape. The question presented is whether Penal Law, section 1699, excludes from the operation of section 1942 a prior conviction of escape from lawful penal servitude.

We have granted to the relator permission to appeal from an order of the Appellate Division which unanimously affirmed an order of County Court dismissing the writ of habeas corpus and remanding the relator to the custody of the respondent, the warden of the New York State Prison at Auburn.

We do not agree with the Attorney-General’s assertion that the relator may not invoke the writ of habeas corpus to challenge a sentence which, according to relator’s claim, exceeds statutory limits. If the relator’s sentence is for a term longer than authorized by statute it is not a judgment of a court of competent jurisdiction even though the sentencing court had power to try the offense and fix the penalty. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 591. Cf. People ex rel. Kerrigan v. Martin, 291 N. Y. 513; People ex rel. Romano v. Brophy, 280 N. Y. 181, 707; People ex rel. Marcley v. Lawes, 254 N. Y. 249; The People, ex rel. v. Kelly, 97 N. Y. 212.)

Nor is there in the present proceeding a jurisdictional defect within the meaning of Civil Practice Act, section 1258, subdivision 4, by reason of the absence of proof that notices required by the statute last cited have been served upon the District Attorney of the county within which the relator was detained and of the county from which he was committed. The requirement of the statute is that such notices shall be served before “ an order for his [the prisoner’s] discharge shall * * * be made ”. As no order for relator’s discharge has yet issued in this proceeding it cannot be said that, in the circumstances disclosed by this record, the failure to give such notices deprived the County Court of jurisdiction.

We come then to the merits of our problem. On June 2,1938, the relator was convicted in the County Court of Queens County of attempted burglary, second degree. Thereafter the District Attorney filed an information pursuant to Penal Law, section 1943, charging the relator as a fourth offender under section 1942 which provides in part as follows: § 1942. Punishment for Fourth Conviction of Felony. A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony, other than murder, first or second degree, or treason, within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for an indeterminate term the minimum of which shall be not less than the maximum term provided for first offenders for the crime for which the individual has been convicted, but, in any event, the minimum term upon conviction for a-felony as the fourth or subsequent, offense, shall be not less than fifteen years, and the maximum thereof shall be his natural life. * * * ”

Of three prior felony convictions charged in the information — all of which were committed in foreign jurisdictions — one was the conviction of the relator on May 3, 1935, in a Mew Jersey court of an escape from Leesburg Prison Farm. For that escape he was sentenced to a term of one to three years to commence upon completion of the prison term he was then serving. The relator acknowledged that he was the same person .described in the information and did not deny that the three prior convictions with which he was charged would have been felonies if committed within the State of Mew York. Thereupon he was sentenced, under Penal Law, section 1942, to a State prison for a term of “ not less than 15 years, nor more than life.”

At the Appellate Division it was ruled that the operation of Penal Law, section 1942, is in no way limited- by section 1699 when, as in the present case, a sentence is imposed for a subsequent felony of a different type. It is said that “ The only effect of section 1699 of the Penal Law is to limit the punishment for the crime of escape.” (263 App. Div. 238, 239.)

We do not so construe section 1699 which is within article 162 of the Penal Law setting forth certain statutory requirements as to the treatment to be accorded prisoners in custody and those who have escaped. The statute here in question provides: “ § 1699. Punishment Upon Conviction of a Felony Committed in Violation of This Article. A person convicted of a felony as lefined by any provision of this article is punishable by imprisonment for not less than one year nor more than seven years and the provisions of sections nineteen hundred forty-one and nineteen hundred forty-two of this chapter shall not apply to such a conviction.” (Emphasis supplied.)

Noting that by its last clause section 1699 provides “ that sections 1941 and 1942 shall not apply to ‘ such a conviction ’ ”, the Appellate Division suggests that “ Had the word 1 sentence ’ been used, instead of the word conviction,’ the application of the section would be clearer.” (263 App. Div. 238, 239.) We may assume, however, that the Legislature’s choice of the word conviction ” — the same word used to express the legislative intent in the related sections 1941 and 1942 — was a deliberate choice of a word of which the meaning is clear and is expressive of the purpose to be accomplished by the statute. When read in its context the word conviction ” states the Legislature’s intention to provide that when, as in the present case, a person who previously has been the subject of multiple convictions is before a court for sentence under section 1941 or 1942, a prior conviction for escape shall not be reckoned as a prior conviction.

The statutes with which we are dealing, being penal in character, must be strictly construed. Their scope is not susceptible to limitation or extension by judicial" interpretation to cover cases not clearly within the expressed legislative intent. (People v. Nelson, 153 N. Y. 90, 94; People v. Ryan, 274 N. Y. 149, 154; People v. Wallace & Company, 282 N. Y. 417, 419-420.) It is true that the increased punishment prescribed by sections 1941 and 1942 is not additional punishment for prior crimes. Nevertheless, the prior conviction is an.element in fixing the increased punishment. Upon that subject we have had occasion to say, per Lehman, Ch. J.: “ Increased punishment decreed by the statute for any offender who commits a second error is not, however, further punishment for the prior offense. ‘ The punishment is for the new crime only, but is the heavier if he is an habitual criminal.’ (McDonald v. Massachusetts, 180 U. S. 311, 312.) ‘ The fact of the former conviction is an element merely in determining the criminality of the second offense. * * ’ ” (People ex rel. Prisament v. Brophy, 287 N. Y. 132, 135, and see Carlesi v. New York, 233 U. S. 51, 58-59; People v. Sickles, 156 N. Y. 541, 546-547.)

A person is entitled to unequivocal statutory warning of thl fact that under existing law in this State (Penal Law, §§ 1941, 1942) a prior felony conviction will serve to increase the punishment for a subsequent felony. For that reason in the present case, where Penal Law section 1699 is the subject of interpretation, we give to its mandate “ that construction which operates in favor of life or liberty ”. (Commonwealth vs. Martin, 17 Mass. 359, 362.) If section 1699 was intended to prescribe increased punishment under sections 1941 and 1942 by reason of a prior conviction for escape that end must be accomplished by legislative action, not by judicial interpretation.

The order should be reversed and the proceeding remitted to the County Court for further proceedings not inconsistent with this opinion.

Loughran, Conway, Desmond, Thacher and Dye, JJ., concur; Lehman, Ch. J., taking no part.

Ordered accordingly.


author: Loughran, J. Lehman, Ch. J.,

text:
    The People of the State of New York, Respondent, v. Murray Winters, Appellant.
    Argued January 10, 1945;
    decided July 19, 1945.

      Arthur N. Seiff for appellant.
    I. Subdivision 2 of section 1141 of the Penal Law is an unconstitutional repression of the State and Federal Constitutional guaranties of a free press. (Thornhill v. Alabama, 310 U. S. 88; People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; Murphy v. Commonwealth, 172 Mass. 264; Wynehamer against The People, 13 N. Y. 378.) II. Since subdivision 2 is in the disjunctive, this raises the question of the validity not merely of the statute taken as a whole, but of each one of the various classes of publications made a crime. .(Stromberg v. California, 283 U. S. 359; Williams v. North Carolina, 317 U. S. 287.) III. Subdivision 2 is comprehensive with respect to the classifications of publications it proscribes. Those classifications are general and all-inclusive. The statute contains no exceptions or limitations in its application to writings falling within any of the classifications therein specified. It makes no attempt at regulation or discrimination. It is not regulation — it is repression. Its character is such that it strikes at the very foundation of freedom of the press by arbitrarily outlawing an entire class of long-recognized literature. (Matter of Craig v. New York State Bonus Commission, 210 App. Div. 732; Matter of Pierse v. Zimmerman, 255 App. Div. 708; Matter of Bristol v. Buck, 201 App. Div. 100, 234 N. Y. 504; Cooper-Snell Co. v. State of New York, 230 N. Y. 249; Tompkins v. Hunter, 149 N. Y. 117; Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341; People ex rel. Knott Corp. v. Graves, 286 N. Y. 377; Stromberg v. California, 283 U. S. 359; Williams v. North Carolina, 317 U. S. 287; Martin v. Struthers, 319 U. S. 141; Colon v. Lisk, 153 N. Y. 188.) IV". The Appellate Division held, as the basis for its decision, that the magazines in this case “ tend to demoralize the minds of their more impressionable readers,” and that subdivision 2 is “ aimed at restraining the publication and sale of such printed matter ” and so is “ a legitimate exercise of the police power of the State in that it is designed to promote the general welfare and to protect the morals of the community ’ In construing the statute thus, the Appellate Division erred in both respects; i.e., in amending, under the guise of construction, a statute whose language is clear and unambiguous, and in holding the statute so amended constitutional. (P. R. T. Co. v. Dash, 125 N. Y. 93; Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553; People ex rel. Knott Corp. v. Graves, 286 N. Y. 377; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357; Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170; Green v. State of New York, 251 App. Div. 108, 278 N. Y. 15; Bridges v. California, 314 U. S. 252; Whitney v. California, 274 U. S. 357; Colon v. Lisk, 153 N. Y. 188; Schneider v. State, 308 U. S. 147; Martin v. Struthers, 319 U. S. 141.)

      Emanuel Redfield and Osmond K. Fraenkel for New York City Committee of American Civil Liberties Union, amicus curiæ, in support of appellant’s position.
    I. Subdivision 2 of section 1141 of the Peiial Law is unconstitutional as in violation of the Fourteenth Amendment of the Federal Constitution and section 8 of article I of the New York Constitution. (Near v. Minnesota, 283 U. S. 697; Schenck v. United States, 249 U. S. 47; Whitney v. California, 274 U. S. 357; Gitlow v. New York, 268 U. S. 652; Herndon v. Lowry, 301 U. S. 242; Bridges v. California, 314 U. S. 252; Hartzel v. United States, 322 U. S. 680; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282; Stromberg v. California, 283 U. S. 359.) II. The statute is indefinite and therefore void. (Herndon v. Lowry, 301 U. S. 242; Lanzetta v. New Jersey, 306 U. S. 451.)

      Sidney B. Fleisher for Authors ’ League of America, Inc., amicus curiæ, in support of appellant’s position.
    The freedom of the press is restricted by the statute here invoked. (Thornhill v. Alabama, 310 U. S. 88; United States v. Levine, 83 F. 2d 156; Lovell v. Griffin, 303 U. S. 444; Bridges v. California, 314 U. S. 252; Whitney v. California, 274 U. S. 357; Herndon v. Lowry, 301 U. S. 242; Cantwell v. Connecticut, 310 U. S. 296.)

      Frank S. Hogan, District Attorney (Alan J. Elliot and Whitman Knapp of counsel), for respondent.
    I. Subdivision 2 of section 1141 of the Penal Law is constitutional. (People v. Ryan, 274 N. Y. 149; Chittendon Lumber Co. v. Silberblatt
      & Lasker, Inc., 288 N. Y. 396; City Bank F. T. Co. v. N. Y. C. R. R. Co., 253 N. Y. 49; Surace v. Danna, 248 N. Y. 18; Blaschko v. Wurster, 156 N. Y. 437; Spencer v. Myers, 150 N. Y. 269.) II. The statute as so construed is valid and constitutional. (Near v. Minnesota, 283 U. S. 697; Gitlow v. New York, 234 N. Y. 132, 268 U. S. 652; Gilbert v. Minnesota, 254 U. S. 325; Schaefer v. United States, 251 U. S. 466; People v. Sanger, 222 N. Y. 192; People v. Byrne, 99 Misc. 1; State v. McKee, 73 Conn. 18; In re Banks, 50 Kan. 242.)
   Loughran, J.

After trial in the Court of Special Sessions of the City of New York, the defendant was convicted upon charges that he had possessed certain printed materials with intent to sell them, contrary to Penal Law, article 106, section 1141, subdivision, 2. The Appellate Division affirmed and the justice who wrote its opinion gave the defendant leave to present the case to us.

The relevant words of section 1141 are these: A person * * * who * * *2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime * * * is guilty of a misdemeanor * * *.” Numerous copies of magazines composed entirely of such pictures and stories were found on the occasion in question in the bookshop of the defendant.

Defense counsel takes the above text at its full literal meaning. “ The statute [he says] makes no distinction between truth, fiction, or statistics. All come within its condemnation equally, provided they consist of 1 criminal news ’ or ‘ police reports ’ or * accounts of criminal deeds From his viewpoint the statute “ condemns any publication devoted to and principally made up of criminal news or police reports or accounts of criminal deeds, regardless of the manner of treatment.” This conception — which would outlaw all commentaries on crime from detective tales to scientific treatises — may, we think, be dismissed at once on the short ground that its manifest injustice and absurdity were never intended by the Legislature. (See Crooks v. Harrelson, 282 U. S. 55.)' On the other hand, we are to heed the rule which tells us to read a statutory text in accordance with the general subject matter of which it is a part. (See Matter of Rouss, 221 N. Y. 81, 91; Matter of Kaplan v. Peyser, 273 N. Y. 147.)

In this instance, the general subject matter constitutes Penal Law, article 106, the caption of which is “ Indecency.” The above text forms subdivision 2 of section 1141 of article 106. The caption of section 1141 is “ Obscene prints and articles.” Indecency and obscenity are not and never have been technical terms of the law and hence we are without any full or rigorous definition of the uses made thereof in the administration of justice. To be sure, our statutes dealing with indecent or obscene publications have generally been held to speak of that form of immorality which has relation to sexual impurity. (People v. Muller, 96 N. Y. 408; Swearingen v. United States, 161 U. S. 446.) Such indeed is the way this court has' read subdivision 1 of section 1141 of the Penal Law (People v. Eastman, 188 N. Y. 478). But to limit the above words of subdivision 2 of section 1141 to that restricted meaning would be to reduce that subdivision to an unnecessary partial reduplication of subdivision 1. Since our respect for the Legislature is enough to keep us away from that interpretation, we move along to the question of the validity of the broader scope of subdivision 2. From this point on, that subdivision will be called the statute.

Indecency or obscenity is an offense against the public order. (9 Halsbury’s Laws of England [1st ed.], pp. 530, 538; Harris Wilshire’s Criminal Law [17th ed.], p. 216; 1 Bishop’s Criminal. Law [9th ed.], §§ 500, 504.) Collections of pictures or stories of criminal deeds of bloodshed or lust unquestionably can be so massed as to become vehicles for inciting violent and depraved crimes against the person and in that case such publications are indecent or obscene in an admissible sense, though not necessarily in the sense of being calculated or intended to excite sexual passion. This idea, as it seems to us, was the principal reason for the enactment of the statute. (Cf. Magon v. United States, 248 F. 201, certiorari denied, 249 U. S. 618; Matter of Foy Productions, Ltd., v. Graves, 278 N. Y. 498.)

There is, as we are also persuaded, ample warrant in the evidence for the finding that the magazines which were taken from the defendant’s premises were obnoxious to the statute. The two thousand copies he kept there were tied up in small bundles that were suitable for delivery to distributors. There is proof of an admission by the defendant of his readiness to sell single copies indiscriminately. The contents are nothing but stories and pictures of criminal deeds of bloodshed and lust. The Appellate Division said: The stories are embellished with •pictures of fiendish and gruesome crimes, and are besprinkled with lurid photographs of victims and perpetrators. Featured articles bear such titles as * Bargains in Bodies,’ ‘ Girl Slave to a Love Cult ’ and, Girls Reformatory.’ ” (268 App. Div. 30, 31.) It is not suggested that any of the contributors was distinguished by his place in the literary world or by the quality of his style. (Cf. Halsey v. N. Y. Society, 234 N. Y. 1.) In short, we have here before us accumulations of details of heinous wrongdoing which plainly carried an appeal to that portion of the public who (as many recent records remind us) are disposed to take to vice for its own sake. Whether the statute extends to accounts of criminal deeds not characterized by bloodshed or lust is a question that does not here arise. (See United States v. Limehouse, 285 U. S. 424; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576; People v. Sanger, 222 N. Y. 192.)

We pass now to the defendant’s contention that the statute is unconstitutional because the criterion of criminal liability thereunder is “ a personal taste standard, uncertain, indefinite and ex post facto in its practical operation.” In the nature of things there can be no more precise test of written indecency or obscenity than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. Consequently, a question as to whether a particular publication is indecent’or obscene in that sense is a question of the times which must be determined as matter of fact, unless the appearances are thought to be necessarily harmless from the standpoint of public order or morality. (See People v. Pesky, 254 N. Y. 373; People v. Wendling, 258 N. Y. 451; People v. Streep, 264 N. Y. 666; People v. Berg, 269 N. Y. 514; People v. Fellerman, 269 N. Y. 629; People v. Brewer, 272 N. Y. 442; Matter of Foy Productions, Ltd., v. Graves, 278 N. Y. 498; People v. Osher, 285 N. Y. 793.) Never has this perception been more forcefully expressed than in this sentence by Cabdozo, J.: “ Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate.” (Paradoxes of Legal Science, 37.) The constitutional validity of that standard has long been established. (Rosen v. United States, 161 U. S. 29. See United States v. Rebhuhn, 109 F. 2d 512, 514; Magon v. United States, 248 F. 201, certiorari denied 249 U. S. 618.)

Under the statute, as the defendant sees it, publication of any crime book or magazine would be hazardous. ’ ’ For reasons that have already been stated, we believe this assertion to be an exaggeration; but the point is of little account in any event, since the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” (Nash v. United States, 229 U. S. 373, 377.) A recent illustration comes readily to hand: An occupier of land who by his use of it does an unreasonable injury to his neighbor’s property can be held to answer therefor, though he may have been guilty of no more than an error of judgment. (Dixon v. New York Trap Rock Corp. 293 N. Y. 509.) So when reasonable men may fairly classify a publication as necessarily or naturally indecent or obscene, a mistaken view by the publisher as to its character or tendency is immaterial.

In anticipation perhaps of what we» have already said, the defendant lastly argues for a fresh conception of freedom of the press under which the heretofore accepted requirements of decency would no longer be operative against obscene publications. We see no immediate necessity for announcing so radical a departure from the collective reasoning of our ancestors, a position whereof we think ourselves to be assured by the following words of the highest court in the land: “ Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, -the libelous, and the insulting or * fighting ’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. See the cases there cited and 2 Cooley on Constitutional Limitations [8th ed.], pp. 886, 1328.)

The judgment should be affirmed.

Lehman, Ch. J.,

(dissenting). I dissent on the ground that the statute, as construed by the court, is so vague and indefinite as to permit punishment of the fair use of freedom of speech. (Stromberg v. California, 283 U. S. 359.) Though statutes directed against “ obscenity ” and “ indecency ” are not too vague when limited by judicial definition, they may be too vague when not so limited. (See McJunkins v. State, 10 Ind. 140; Jennings v. State, 16 Ind. 335.) It is the function of the Legislature to define the kind of conduct which is harmful from the standpoint of public order or morality and should be prohibited. Then the question whether the conduct of a defendant falls within that definition may be one of fact. The morality of the community does not, however, become the standard of permissible conduct until the Legislature has embodied its conception of that morality in a regulatory statute.

The judgment should be reversed.

Lewis, Conway, Desmond, Thacher and Dye, JJ., concur with Loughran, J.; Lehman, Ch. J., dissents in opinion.

Judgment affirmed. [See 294 N. Y. 979.]


author: Per Curiam.

text:
    In the Matter of Stephen Mack, Respondent, against Patrick Walsh, as Fire Commissioner and Chief of the Fire Department of the City of New York and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, Appellant, et al., Defendants.
    Argued April 18, 1945;
    decided July 19, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for appellant.
    Since the medical boards determined that Mack had a non-service-incurred permanent disability, he should have been retired. (Matter of Thomasson v. Valentine, 263 App. Div. 334; Matter of Eichler v. McElligott, 283 N. Y. 716; Matter of Sheridan v. McElligott, 278 N. Y. 59.)

      David A. Ferdinand and Harold L. Strauss for respondent.
    I. The suspension of Mack by the fire chief was without legal basis. (Matter of Clancy v. Halleran, 263 N. Y. 258; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Bemis v. Board of Education, Ilion, 171 Misc. 957.) II. The patent misconduct of the medical boards and the deception practiced on petitioner’s representative at the special medical board, warranted the vacation of the medical determinations. (Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.)
   Per Curiam.

The finding of Special Term that the rights of the petitioner-respondent Mack were not properly safeguarded upon the examination by the Special Medical Board, is supported by some evidence. Upon that finding a new examination should be ordered before a special medical board, in accordance with the provisions of section B19-4.0, subdivision d, of the Administrative Code of the City of New York.

The order of the Appellate Division should be modified to the extent of reinstating the determinations of June 25, 1943, and October 1, 1943, made by the Medical Boards appointed by the Fire Commissioner, and directing the appellant Fire Commissioner to order a re-examination of petitioner-respondent Mack before a special medical board, and, as so modified, affirmed, with costs to petitioner-respondent.

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Oscar Kullmann, Respondent, against Patrick Walsh, as Commissioner of the Fire Department of the City of New York, Appellant.
    Argued April 18, 1945;
    decided July 19, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for appellant.

      Paxton Blair and Edward M. Edenbaum for respondent.
   Per Curiam.

The finding of Special Term that the rights of the petitioner-respondent Kullmann were not properly safeguarded upon the examination by the Special Medical Board, is supported by some evidence. Upon that finding a new examination should be ordered before a special medical board, in accordance with the provisions of section B19-4.0, subdivision d, of the Administrative Code of the City of New York.

The order of the Appellate Division should be modified to the extent of reinstating the determination of December 10, 1943, made by the Medical Board appointed by the Fire Commissioner, and directing the appellant Fire Commissioner to order a re-examination of petitioner-respondent Kullmann before a special medical board, and, as so modified, affirmed, with costs to petitioner-respondent.

Lehman, Ch. J., Loughran, Lewis, Comway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.


author: Lehman, Ch. J.

text:
    In the Matter of the City of New York, Appellant, against Emil Schoeck et al., Respondents, et al., Defendants.
    Argued April 18, 1945;
    decided July 19, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for appellant.
    I. The board of trustees, having
    found that Schoeck was permanently disabled, was under a duty imposed by the pension statute to retire him and having failed to do so the Court should compel performance of the duty which the statute imposes. (Matter of Pierne v. Valentine, 291 N. Y. 333; Matter of Potts v. Kaplan, 264 N. Y. 110.) II. The fire department pension statute establishes a trust fund and imposes on the trustees specified trust duties. It having been shown that the trustees are unable to execute the trust and fix and determine the retirement rights of Schoeck, the power to perform that act devolves upon the court. (Brown v. Spohr, 180 N. Y. 201; Matter of Pierne v. Valentine, 291 N. Y. 333; Roddy v. Valentine, 268 N. Y. 228; Matter of Schwab v. McElligott, 282 N. Y. 182; N. Y. City Employees' Retire. System v. Eliot, 267 N. Y. 193; Matter of Furgueson v. La Guardia, 257 App. Div. 1048, 281 N. Y. 678; Colton v. Colton, 127 U. S. 300; Collister v. Fassitt, 23 App. Div. 466, 163 N. Y. 281; Stuart v. Cheyney, 206 Pac. 386; Klug v. Klug [1918], 2 Ch. 67; Cutter v. Burroughs, 61 Atl. 767; Prince v. Barrow, 48 S. E. 412; Collins v. Collins, 121 S. E. 218; Marshall v. Cauldwell, 125 Mass. 435; Warner v. Rogers, 255 Ill. App. 78.)
    B. Arnold Chambers and Gerald H. Chambers for Emil Schoeck, respondent.
    I. The Supreme Court may not judicially review the vote of the trustees of the pension fund and substitute its own discretion for theirs. Generally, the courts are not authorized to review the exercise of administrative or executive discretion. (Matter of Small v. Moss, 279 N. Y. 288; People ex rel. Peixotto v. Bd. of Education, 212 N. Y. 463; People ex rel. Harris v. Commissioners, 149 N. Y. 26.) II. The courts have consistently refused to intervene to direct the manner of voting by administrative bodies. (People ex rel. Comstock v. Morrison, 64 App. Div. 262, 165 N. Y. 644; Matter of Moose v. Town Board of Health, 116 Misc. 459; People ex rel. Francis et al. v. Common Council, 78 N. Y. 33; People ex rel. Brady v. Martin et al., 145 N. Y. 253; Matter of McMeekan v. Dept. of Health, 157 Misc. 620, 274 N. Y. 521; Matter of State of New York, 207 N. Y. 582; Matter of City of Long Beach v. Sprague, 248 App. Div. 625, 273 N. Y. 607; Matter of Heffernan v. McGoldrick, 259 App. Div. 671.) III. The Supreme Court should not intervene where the members of a board of trustees specifically vested with sole and exclusive discretionary voting power and acting in good- faith and within the scope of their jurisdiction, have been unable to agree. (Matter of Hickie v. Valentine, 177 Misc. 743, 262 App. Div. 832; Matter of Pierne v. Valentine, 266 App. Div. 70, 291 N. Y. 333; Matter of Walsh v. McElligott, 169 Misc. 457; Matter of Reynolds v. Bingham, 126 App. Div. 289; Matter of Phillips v. McElligott, 254 App. Div. 863, 279 N. Y. 792; Matter of Eichle v. McElligott, 259 App. Div. 151, 283 N. Y. 716; People ex rel. Kane v. Drennan, 106 Misc. 40.) IV. The statutory language involved makes evident the legislative intent that the medical board’s opinion be merely advisory.

      Paxton Blair and Edward M. Edenbaum for Vincent J. Kane and others, respondents.
    I. Since the local law provides that the Board of Trustees of the Fire Department Pension Fund shall act by a vote of at least seven-twelfths of their number, and since the local law has failed to provide for the consequences of a tie vote, the Appellate Division rightly held it error to rule that the votes of one group of six, rather than the other group of six, were arbitrary and should be changed by judicial fiat. (Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338; Hillas & Co., Ltd., v. Arcos, Ltd., 36 Com. Cas. 353 [C. A., 1931]; Saum v. Capital Realty Development Corp., 268 N. Y. 335; Matter of State of New York, 207 N. Y. 582; Matter of City of Long Reach v. Sprague, 248 App. Div. 625, 273 N. Y. 607; People ex rel. Brady v. Martin et al., 145 N. Y. 253; Matter of Pierne v. Valentine, 291 N. Y. 333; Matter of Hickie v. Valentine, 177 Misc. 743, 262 App. Div. 832; Matter of Cluck v. Rice, 265 N. Y. 132.) II. Under the rule in Matter of Hickie v. Valentine (177 Misc. 743, 262 App. Div. 832), the preference of the uniformed firemen’s representatives on the board of trustees for the views of the minority of the medical board could not be held so baseless and arbitrary as to justify an order directing the board to make a determination opposed to the views of such members. III. The analogy of cases from the law of trusts may not be invoked to sanction a disregard of the statutory procedure in relation to the award of pensions. To invoke it would violate the principle that a casus omissus does not justify judicial legislation. (People ex rel. Wood v. Assessors, etc., 137 N. Y. 201; United States v. Dern, 289 U. S. 352; Matter of MacMaster v. Harvey, 239 App. Div. 553, 265 N. Y. 555; Matter of Curtin v. Dorman, 293 N. Y. 505; People ex rel. Clapp v. Listman, 40 Misc. 372; Matter of Walsh v. La Guardia, 269 N. Y. 437; The People v. Woodruff, 32 N. Y. 355; Ebert v. Poston, 266 U. S. 548; Matter of Doyle, 257 N. Y. 244.)
   Lehman, Ch. J.

The respondent Emil Schoeck became a member of the uniformed force of the Fire Department of the City of New York on July 1, 1913, and a Battalion Chief on March 1, 1937. On December 31, 1942, he applied for and was granted sick leave. On March 29, 1943, he filed an application for a Three-fourths (%) disability pension for injuries received in the discharge of duty.” No final official action upon that application has been taken.

Administration of the New York Fire Department Fund is regulated by article 1, title B of chapter 19 of the Administrative Code of the City of New York. It provides among other things: “ A board of trustees shall be the head of the New York fire department pension fund ” and “ Every act of the board of trustees shall be by resolution which shall be adopted only by a vote of at least seven-twelfths of the whole number of votes authorized to be cast by all of the members of such board.” (§ B 19-2.0.) The board of trustees shall retire any member who, upon an examination, as provided in subdivision d of this section, may be found to be disqualified, physically or mentally, for the performance of his duties. Such members so retired shall receive from such pension fund an annual allowance or pension as provided in this section. In every case such board shall, determine the circumstances thereof, and such pension or allowance so allowed is to be in lieu of any salary received by such member at the timé of his being so retired.” (§ B 19-4.0, subd. a.) “ All medical examinations required by or made pursuant to the provisions of this article shall be conducted by a medical, board appointed by the commissioner, provided, however, that any member, within thirty days after receipt of the decision of such medical board, in writing may request that the decision of such board be reviewed by a special medical board * * * . The decision of such special board shall supersede the decision of the medical board.” (§ B 19-4.0, subd. d.)

Pursuant to the provisions of the statute, a medical examination of the respondent Schoeck was held before a medical board' of ten doctors appointed by the Fire Commissioner. That board rendered a written report dated April 9,1943 (three members dissenting) certifying that the majority of the board found Schoeck “ to be disqualified, physically, for the performance of his duties in the Uniformed Force; and that said Chief of Battalion Emil Schoeck has a partial permanent disability which, according to the records of the Department — was-was not — caused in or induced by the actual performance of the duties of his position.” The majority of the board further certified that its “ decision is based upon the following result of our examination of the hereinbefore named Member, to wit: due to Hypertensive Cardio Vascular disease, not caused by or induced in the performance of duty. He is unfit for his normal duties in the Fire Department.”

At the request of the respondent Schoeck, made in accordance with the statute, a further medical examination was held before a Special Medical Board, consisting, as provided in the statute, of one doctor of the medical board, a doctor selected and compensated by the respondent Schoeck and a “ recognized specialist on the condition, disease or injury * * * for which disability is claimed,” selected by the two other members of the Special Medical Board. That board reported on June 5, 1943 (the physician selected and compensated by the respondent dissenting) that the board found the respondent to be disqualified, physically, for the performance of his duties in the Uniformed Force ” and that his condition was “ not caused in or induced by the actual performance of the duties of his position,” and that in view of the above stated result of our examination, we recommend that said application for retirement on three quarters pension of Battalion Chief Emil Schoeck be denied.”

At a meeting of the board of trustees of the New York Fire Department Pension Fund a motion to grant the application of the respondent Schoeck for disability retirement on three-quarters pay was offered, in spite of the recommendation of the Special Medical Board that the application be denied. The motion was defeated, six votes being cast in favor of the motion and six votes being cast in opposition. At a meeting of the board of trustees held on August 30, 1943, a motion was unanimously adopted requesting that the Medical Board reexamine the respondent Schoeck ‘ ‘ to certify the fitness of the respondent Emil Schoeck for duty in the Fire Department.” Such an examination was thereafter held and the Medical Board rendered a report dated September 24, 1943, certifying that it found Schoeck “ disqualified, physically, for the performance of his duties in the Uniformed Force ” and that his disqualification “ was not caused in or induced by the actual performance of the duties of his position.” At subsequent meetings of the board of trustees, resolutions were offered to retire the respondent Schoeck on one-half pay, and other resolutions were offered intended to effect his retirement at three-quarters pay. All such resolutions were defeated, six votes being cast in each case in favor of the resolution and six votes against the resolution.

There has never been any question that the respondent Schoeck is disqualified for the performance of his duties. Difference of opinion among the members of the Medical Board of the Department and among the members of the Special Medical Board is confined to the question of whether the disability was caused or induced by the actual performance of the duties of his position. He has been on sick leave since December 31, 1942, and has failed, though, concededly, without fault on his part, to perform his duties. The Administrative Code provides that the board of trustees “ shall retire ” any member who upon examination is found to be disqualified for the performance of his duties. The command is peremptory. Determination whether or not a member of the force is disqualified for the performance of his duties is confided by the statute to the medical board or special medical board which makes the examination. The board of trustees must accept the report of the examining board concerning the physical or mental qualifications of the members. No room for the exercise of discretion whether or not to retire the member is left open to the board of trustees. The intent of the statute is plain. A member of the uniformed force of the Fire Department should not receive the salary attached to his position unless he can perform its duties, but must be retired upon the pension provided by law, and whether or not the member is physically or mentally disqualified is a scientific question which must be determined by the experts who examine the member and whose determination in that regard is final.

Nevertheless a finding by the medical board that a member is disqualified for the performance of his duties “ does not in itself accomplish retirement, for the statute expressly commands that ‘ the hoard of trustees shall retire any member ’ and retirement by the board like every other action by the board, must be taken by resolution and however peremptory the command may be, we have consistently held that the retirement is not accomplished until the board has acted.” (Matter of Pierne v. Valentine, 291 N. Y. 333, 343.) Here the board of trustees has failed to pass a resolution retiring the respondent Schoeck because seven-twelfths of the members of the board are not able to agree upon the amount of pension to be paid to him upon his retirement though apparently all agree that the board must retire him. He still remains a member of the uniformed force of the Fire Department.

Pending the adoption of a resolution completing his retirement the Fire Commissioner issued an order “ discontinuing payment of any salary to respondent Emil Schoeck but continuing him on sick leave.” Schoeck has challenged the validity of that order and the City of New York points to no provision of law which justifies that order; and in Matter of Mack v. Walsh (294 N. Y. 554) and in Matter of Kullmann v. Walsh (294 N. Y. 557) decided herewith, we have held that similar orders should be vacated and set aside. The validity of that order is not directly involved in the proceedings now under review which were brought by the City pursuant to article 78 of the Civil Practice Act for an order in the nature of mandamus directing the board of trustees to retire the respondent Emil Schoeck, a member of the uniformed force of the Fire Department of the City of New York at one-half of his regular annual pay for disability not incurred in the performance of duty, and e e * for such other and further relief as to the Court may seem just and proper in the premises.” At Special Term the application of the City was granted but the Appellate Division unanimously reversed the order of Special Term and directed that Schoeck be reinstated in his position as Battalion Chief and be paid the full salary he was receiving in that position.

Though Schoeck, upon an examination held as provided by the statute, has been found physically disqualified for the performance of his duties as a member of the uniformed force of the Fire Department and the board of trustees have no authority to overrule or disregard that finding but must retire Schoeck upon an annual allowance or pension determined by the board of trustees in accordance with the statute, yet in reaching that determination it is not bound by the finding of the Medical Board or of the Special Medical Board that the disqualification was not caused or induced by the actual performance of his duties. If Schoeck’s disqualification was so caused or induced, the board must grant his application for retirement upon an annual allowance of three quarters of his salary. If not so caused or induced he would be entitled only to a lesser allowance. (See § B 19-4.0, subds. a, b.) The function and duty of determining the “ circumstances ” of the disqualification and of determining the amount of the allowance as provided in that section of the statute is conferred upon the board of trustees. That includes the determination of whether or not the disqualification was incurred in the performance of the member’s duties and there the finding upon the medical examination of the member that the disqualification was not so incurred is advisory only. The board of trustees may in the exercise of a sound discretion accept that finding or may reject it and make a contrary finding. (Matter of Hickie v. Valentine, 177 Misc. 743, affd. 262 App. Div. 832, leave to appeal denied 287 N. Y. 854.)

The Administrative Code provides that the board of trustees shall consist of twelve members. Three of such members are officers of the City and one “ a representative of the mayor * * * appointed by the mayor Each of these four members, called for convenience “ official ” members, casts one and one-half votes. Four of the other eight members of the board are officers of the uniformed firemen’s association of greater New York ” and each is entitled to cast one vote, and four of the members are the presidents respectively of the “ chief officers’ association,” of the “ captains’ association,” of the lieutenants’ association ” and of the officers’ association ” of the Fire Department of the City of New York, and each of these members is entitled to cast one-half vote. (§ B 19-2.0.) Thus the group of “ official ” members of the board have collectively six votes and the group of members of the board who are officers of associations of department members also have collectively six votes; If each group votes collectively there is a deadlock in the board and no resolution can be passed “ by a vote of at least seven-twelfths of the whole number of votes authorized to be cast by all of the members of such board.”

That is the situation which is presented upon this appeal. The problem which we must decide now is whether when such a deadlock exists in the matter of fixing the amount of the retirement allowance or pension of a member of the force who must be retired, the court may command the board of trustees to retire such member and may itself determine the amount of the retirement allowance. Where a public officer or board arbitrarily or without legal excuse refuses to perform a duty imposed by statute the court may issue an order in the nature of mandamus to compel the performance of the duty. The statutory command to the board to retire the respondent Schoeck is peremptory and there is no room for the exercise of discretion. There can be no doubt that the command may be enforced by order of the court, at least unless it is inseparably combined with the command to fix the amount of the retirement allowance.

Since the board of trustees must determine whether his disqualification was caused or induced by Schoeck’s actual performance of the duties of his position, and in reaching such determination the board may disregard the finding of the Medical Board, the court cannot direct the board of trustees to accept that finding unless that finding is incontestably correct and there is no room for reasonable difference of opinion. It is plain that in this case there is room for difference of opinion and possibility of a contrary finding is not excluded. Indeed, as we have said, neither the Medical Board nor the Special Medical Board were unanimous. We are agreed too that the court has no power ^ to make its own determination of the circumstances ” of the disqualification where the board of trustees fails to act. True, a ¡ court of equity may in proper case and upon equitable principles direct the manner in which trustees shall perform their duties but such equitable principles have no application in a case like this where the pension fund is created by statute and the powers and duties of the board of trustees of the fund are defined and regulated by statute. The statute does not make the board answerable to a court of equity for the manner in which it performs its duties. For these reasons we agree with the Appellate Division that the court cannot direct the board to fix the retirement allowance of the respondent Schoeck at more than one-half of Ms previous salary or at less than three-quarters of the salary.

It does not follow, however, that the court may not direct the board of trustees to perform its duty to retire the respondent upon the finding of disability as required by statute. That statutory duty is not expressly qualified by any provision of the statute that performance of that duty must be simultaneous with a determination of the retirement allowance to be paid to him. On the contrary, as we have said, the statute provides first that the board of trustees shall retire a member who has been found physically or mentally disqualified and then that the member “ so retired shall receive * * * an annual allowance or pension as provided ” by statute. Retirement must precede a right to receive the retirement allowance provided by the statute. That allowance in this case may not be less than one-half of the salary and a member who has been so retired ” is entitled to at least that amount and may be entitled to more if the board so decides. Failure by the board to agree whether or not he should receive a larger amount does not entitle a member of the department who is found to be disqualified for the performance of his duties to remain a member of the department and receive full pay for the performance of duties which he is unable to perform because of physical or mental disability. In accordance with the letter and spirit of the statute the board of trustees is bound to perform its duty to retire the respondent Schoeck even though it does not perform simultaneously its duty to fix the amount of the retirement allowance. Since there (is no room for discretion in the performance of the board’s | duty to retire the respondent, the court may direct the board ¡to perform that duty and the respondent “ so retired ” becomes 'entitled to payment of an annual retirement allowance of at least one half his previous salary. Since the board has power to fix that allowance at three quarters of the previous salary of a member who is so retired and since there is room for the exercise of discretion in the board’s determination of the amount of the salary which the member “ so retired ” shall receive, the court cannot direct the board to determine that amount as the court may think wise. It follows that the order of the Appellate Division should be modified and the matter remitted to Special Term for entry of an order in accordance with this opinion, directing the board of trustees to retire the respondent Schoeck and providing that until the board of trustees shall by resolution “ determine the cause ” of the respondent’s disqualification and fix the amount of the respondent’s retirement allowance the respondent shall be entitled to receive payment from the pension fund of an allowance of one half his salary on account of his retirement allowance. If the board of trustees shall thereafter fix the amount of the respondent’s allowance at more than one half his salary he shall be entitled to receive the excess from the date of his retirement.

* The orders should be modified and the proceeding remitted to the Special Term for the entry of an order in accordance with this opinion, without costs. [See 294 N. Y. 976.]

Loughran, Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.