The People ex rel. Murray agt. McClave. sum of $1,200 out of the moneys so deducted, withheld or contributed." It is contended by the relators that the general intent of the act was to establish a life insurance fund for the police department, and that so far as the act relates to members of the police force, it is the duty of the respondent to make the deduction of two dollars per month from their pay, whether such deduction be assented to or not. From my examination of the statute I am of the opinion that the relator's position in this respect is sound. It seems to me that the true construction of section 2 is that the treasurer of the board of police commissioners must deduct a sum equal to two dollars per month from the salary of each member of the police force, and that such deduction may be made in the case of each member or employee of the said department, other than the said force, who shall desire to avail himself of the privileges and provisions of the act, and also in the case of members of the Police Mutual Aid Association, who are in good standing, and who shall desire to contribute to the said fund. I also think that the relator's counsel is right in contending that the words "who shall desire to avail himself" and "who shall desire to contribute to said fund" are limited to members or employees of the department and members of the Police Mutual Aid Association who are not members of the police force. That the legislature intended to make a distinction between a voluntary contribution and a compulsory deduction is, I think, apparent from the provisions of section 4, in which, in describing the amount to be paid in cases of death, it is directed that the sum of $1,200 shall be paid out of the moneys so deducted, withheld or contributed. There is a clear distinction here between a contribution and a deduction or withholding. The contribution in my opinion refers to the voluntary payment to be made by those attached to the department or the Police Mutual Aid Association, who are not members of the active police force, and not to the deduction of the sum which "the treasurer of the board of police is authorized and directed to The People ex rel. Murray agt. McClave. make from the pay of the members of the said police force as herein provided." I do not deem it necessary to go minutely into the verbal construction of section 2, nor to consider whether if a comma had not been inserted between the word "force" and the words "who shall desire, &c.," the intention of the legis lature to discriminate between a compulsory deduction from the pay of a member of the force, and a voluntary contribution. from the other persons attached to the department therein referred to, would have been more clear. In construing this act we must take into consideration its whole frame work and all of its language. If the intention of the legislature was to provide for a mere voluntary life insurance fund, by the members and employees of the police department, it would hardly have seemed necessary to pass the act at all, as the members of the force and the other employees could have formed such a fund by their own voluntary agreement. It can readily be seen that public policy would dictate that the active members of the force, who are exposed to accident and danger in the performance of their duties, would need protection for their families in case of accident to them; and this seems to me to be a good reason, and one that, it is apparent from the language of the act, impressed itself upon the legisia ture, for making a distinction between the active members of the force and the other employees of the department. Public policy dictated that, as to the former, a certain fund to provide for their families in case of their death should be created, and that in the case of the latter it should be provided, if the employeesso desired and were willing to make the contribution permitted by the act. But it is said that the act in question is unconstitutional if the construction is given to it, to which I have adverted, because it deprives the members of the police force of their property without due process of law, and also because the act is a local act, and that it decreases the allowance of a publicofficer during the term for which he was appointed. I cannot concur in the validity of these objections. It was long ago held in the case of Conner agt. Mayor, &c., The People ex rel. Murray agt. McClave. of N. Y. (1 Selden, p. 285), that the prospective salary or emoluments of a public office are not the property of the officer, nor the property of the state; that they are not property at all; that they are like daily wages unearned and which may never be earned; that the right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him (See opinion of RUGGLES, J., at page 296, and opinion of Foor, J., pp. 299 and 300). The authority of that case has not, I believe, been questioned, but, on the contrary, it has been approved and followed by the court of appeals in many other cases. In Smith agt. The Mayor (37 N. Y., p. 518), HUNT, Ch. J., in delivering the opinion of the court, said: "An office in this country is not property, nor are the prospective fees of an office the property of the incumbent," and, after citing Conneragt. Mayor (1 Selden, 285), he continues: "The incumbent cannot sell his office or purchase it, or encumber it. It will not pass by an assignment of all his property, nor will such assignment affect his right to prospective fees. The legislature may diminish or abolish the fees at pleasure, or may render it a salaried office." * * * The corporation of the city of New York may do the same when it fixes the rate of compensation. It is only in the cases. of a few of the state offices that the constitution prohibits such interference" (See also The People agt. Stevens, 51 How. Pr.. Rep., 153; People agt. Roper, 35 N. Y., p. 639; People agt. Devlin, 33 N. Y., p. 288). It is claimed that the decision of the court of appeals in the case of The People ex rel. Ryan agt. French (91 N. Y., 265). sustains the view of the respondent's counsel. I do not think SO. DANFORTH, J., in delivering the opinion of the court in. that case, says: "The cases (Conner agt. The Mayor, 5. N. Y., 285; Smith agt. The Mayor, id., 518; Dolan agt. The Mayor, 68 id, 274, and McVeany agt. The Mayor, 80 id., 185) cited: by the respondents have no application to the question before. The People ex rel. Murray agt. McClave. us. None of them decides that an incumbent of a public office entitled to an annual salary can be deprived of any part of it by an authority which did not fix the salary, and which is prohibited from doing so, or that any part of it can be withheld from him by reason of his involuntary disability to perform the duties of such office." In the case of Ryan, it was not decided that the legislature, which fixed the salary of the members of the police court, could not change or reduce that salary during his continuance in office. The point there was, whether the board of police could, by a mere rule, prescribe that members of the force should receive one-half or one-fourth pay for lost time during illness, the salary of the police having been fixed by the legislature, and it was held that the rule of the board was invalid. It will be observed in examining the opinion of the court of appeals in the Ryan Case, that the cases of Conner, Smith and other, above referred to, are not overruled, and that it is nowhere held that the legislature cannot alter or decrease the salary of a public officer which they themselves have fixed, there being no express provision in the constitution against the diminution of such salary. It is said, however, secondly, that the act is a local act, and decreases the allowance of a public officer during the term for which he was appointed, and that it is, therefore, in conflict with section 18, article 3 of the constitution. That section was the subject of examination in the case of Mangam agt. The City of Brooklyn (98 N. Y., 595), in which it was held that it did not apply to officers receiving fixed salaries, but included only those irregular and uncertain modes of compensating public servants indicated by words of like meaning with fees, percentage, &c. RUGER, Ch. J., in delivering the opinion of the court in that case, says: "In a proper sense there are no public officers in the state whose compensation may not be increased or diminished by the legislature during their terms of office, except those of governor or lieutenant-governor, the other state officers named in the constitution, judges of the court of appeals, judges of the The People ex rel. Murray agt. McClave. * supreme court, county judges and surrogates. These are, by the terms of the constitution, expressly exempted from the power of the legislature to diminish, and, in some cases, to increase during their existing terms. * All other public officers are subject to the power of the legislature, to increase or diminish their compensation at any time, provided it be done by a general law. In a strict sense, therefore, the language of this section does not apply to the officers in question; for the inhibition is against such legislation by local or private bills only, and not to enactments accomplishing these objects by general law." The learned judge then goes on in an elaborate opinion to hold that the provisions of the article of the constitution in question do not apply to officers receiving fixed salaries. In that very case the question arose between a policeman or the administratrix of a policeman and the city of Brooklyn. The action was brought for a balance of salary claimed to be due to the intestate, and it was alleged that as the compensation of the patrolman, at the time the intestate joined the police force, was $1,100 per annum, the common council of Brooklyn had no power under a local act, which conferred such authority upon them, to reduce the annual compensation payable to patrolmen from $1,100 to $1,000 per annum. This case seems to be conclusive as to the second point raised by the counsel to the corporation in respect to the constitutionality of chapter 486 of the Laws of 1885. Nor do I think that this proceeding should be dismissed on the ground that it appears that the three members of the police force, named in the moving papers, who have refused to submit to a monthly deduction from their salaries, are not made parties to it. The object of this proceeding is to compel the respondent, McClave, to perform a duty imposed upon him by the act of 1885. Of course, the rights of the three objecting members of the force cannot be definitely disposed of; but the duty of the treasurer of the police department can be enforced without VOL III. 3 |