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ened, in the first instance, by the fact that there it was a fee for a special service about which the charter was silent, and not the salary that was at stake, and, in the latter instance, by the fact that the provision authorizing the office explicitly conferred power to fix the salary on the central governing boards of the city.

Baker v. City of New York held that the provisions of the Consolidation Act regarding the stenographer's fees had not been superseded, despite their omission both from the charter and from the ordinances relating to the position.' Incidentally, the court tended to construe section 56 narrowly, and to hold that the salary-fixing power of the Board of Aldermen and the Board of Estimate was confined to the offices created by them. Hamburger v. Board of Estimate indicated a more liberal interpretation. The Court said of section 56, as amended through 1902,

This seems to have been as broad a grant of power as human language could frame," and it added, “I am inclined to think that'any officer or person whose compensation is paid out of the city treasury' is limited only by the words “an elected officer or head of department during his term.'” The factors which compromised the conclusiveness of this decision' have been indicated. At least, the concept of conditional repeal of express provisions in existing law was not challenged.

In the face of the poverty of cases in point, when in 1915 the Office of Commissioner of Accounts undertook to study the effect of mandatory legislation upon the New York City budget and found that the full potential extent of local discretion in the fixing of salaries was one of the most important factors which must be discovered, it was necessary to ask the opinion of the

1

See supra, p. 33, for a discussion of this case in connection with the proposition that the Greater New York Charter did not supersede the parts of the Consolidation Act which it neither covered nor expressly repealed.

Hamburger v. Board of Estimate was subsequently cited (according to Shepard's Cits., through Je. 1922) in one case, Walters v. City of New York (1907) 119 App. Div. 464, 105 N. Y. Supp. 950. This, however, did not involve the relationship of an ordinance to a prior special law, but involved the civil service law regarding veterans' preference in its relation to local control of positions and salaries.

Corporation Counsel upon submitted questions. The first of these was particular in its terms and need not be considered. The second question read:

“What is the effect of the provision of section 56 of the Charter giving to the Board of Aldermen power to fix salaries 'irrespective of the amount fixed by the Charter? This section seems to have been last amended by ch. 435 of the L. of 1902. May the Board of Aldermen change any salary fixed by a section of the Charter passed prior to 1902? May it alter salaries fixed by amendments of

the Charter passed subsequent to 1902?" The Corporation Counsel answered:

"Referring to question 2, in my opinion the Board of Aldermen, pursuant to the provisions of section 56 of the Charter, may change any salary fixed by a section of the Charter passed prior to 1902. As to salaries fixed by amendment of the Charter passed subsequently to 1902, the answer is not free from doubt. If a section is amended wherein, among other things, the salary of an office or position is provided for, but the amount of the salary or compensation is not changed, I incline to the view that such amendment would not interfere with the power of the Board of Aldermen to fix salaries as provided in section 56. On the other hand, if subsequently to 1902 a section of the Charter has been amended whereby the amount of the salary or compensation of an office or position has been changed, I incline to the view that it would be held that the amount fixed by such amendment would be binding upon the Board of Aldermen and

the Board of Estimate and Apportionment." The third question read:

Where a salary is specifically fixed by an act of the legislature at a definite figure, can the Board of Estimate

.46 Opinions of the Corporation Counsel of New York City, 415-7, the opinion being addressed to the Commissioner of Accounts on June 10, 1915. For the latter's application of the opinion, see Report on A Study of the Effect of Mandatory Legislation Upon the Budget for the Year 1915, issued June 15, 1915, by L. M. Wallstein, Commissioner of Accounts.

and the Board of Aldermen legally fix such salary at a

higher rate?” To this Corporation Counsel replied:

“Referring to question 3, I assume you refer to acts other than the Greater New York Charter. I am of opinion that a salary fixed by legislative enactment other than by the Greater New York Charter may not be increased by the Board of Estimate and Apportionment and Board of Aldermen."

The law of the matter can rest here. Such has been the settled practice of the city authorities both before and after.

Proposals to Enlarge Local Power Over Salaries. Proposals to confer a broader and less equivocal power to change salaries have been introduced in the Legislature in recent years. In the sense that they have remained suggestions and have not become actual provisions of law, their consideration belongs in later pages and there they will be mentioned in connection with the proposal that the City be given power to change its departmental organization regardless of existing law. They may be briefly noted here, however, in order to emphasize the incomplete nature of the power given by section 56 of the charter. In 1915 a bill’ was introduced by Senator Bennett and

" Infra p. 124.

* S. Int. No. 607; A. Int. 831. Neither was considered on the floor. Of this proposal, the Report of the Committee on Legislation of the Citizens' Union, 1915, p. 7, said: “The first bill introduced to give the city control over salaries now mandatory was drafted by your committee. It was introduced by Senator Bennett and Assemblyman Stoddard. It gave concurrent jurisdiction to the Board of Estimate and Apportionment and the Board of Aldermen to fix salaries approximating $30,000,000, or nearly one-sixth of the city's annual budget, over which it now has no control.

included the compensation of county officers and employees, other than justices, but it did not include public school teachers.” The proposal was not as recent as the foregoing report indicates. The Report of the Committee on Legislation of the Citizens' Union for 1906. p. 11, stated: “Last year and this year the Senate Cities' Committee introduced a bill giving the city complete authority over all salaries paid by the city. This bil! has met the determined opposition of the Brooklyn Republican members who seem to think that home rule for Brooklyn is by way of Albany."

Assemblyman Stoddard and another' by Senator Cromwell, who had been for so long Borough President of Richmond and a member of the Board of Estimate. In the same session, Mr. Cromwell introduced a charter amendment which proposed to empower the Board of Estimate to fix the number of all appointive officers and employees paid from the City treasury.'

In 1916 the proposal to great power to change both the salaries and the numbers of employees was part of the program of the Legislative Joint Committee for the Investigation of the Finances of New York City. Its chairman, Senator Brown, sponsored a bill' which, subject to local referendum, proposed to empower the central governing boards of New York City to change the salaries and numbers of city employees and, separately, a bill' which advanced similar provisions in relation to county positions. Both passed the Senate, by votes of 41 to 16 and 36 to 7,7 respectively, but only the bill relating to city employees was successful in the Assembly, passing by a vote of 128 to 12.' Before its passage it was weakened by the exclusion of members of the teaching and supervising staff in the Department of Education. Mayor Mitchel, who had urged a more emphatic power over both salaries and numbers of all employees, vetoed this partial and doubly compromised proposal. Other bills in the session of 1916 made no progress; at least one of them revealed a motive that was less concern for the administrative

* S. Int. No. 982.
?S. Int. No. 1224.

Report of the Joint Legislative Committee for the Investigation of the Finances of New York City, Feb. 7, 1916, in N. Y. Sen. Docs., 1916, no. 25, p. 20. The committee estimated a saving of $2,500,000 annually

by conferring on city power to fix salaries,” and a similar economy “in bringing county government under city control.” Ibid., p. 21.

*S. Int. No. 594. Pr. No. 734; A. Rec. No. 356. S. Int. No. 590, Pr. No. 1556; A. Rec. No. 357.

*N. Y. Sen. Jour., 1916, p. 1257. The single negative vote cast by Lawson, Rep., of Kings.

'Ibid., p. 1257. The seven negative votes, in addition to one by Sen. Lawson, were cast by Democrats, of which four were from Kings, one from Queens, one from Bronx, and one (a Sullivan) from New York County.

'N. Y. Ass. Jour., 1916, p. 2411-2. The twelve in the negative were New York City Democrats, four from New York County, four from Queens, three from Kings, and one from Bronx.

integration of the City than jealousy for the Board of Aldermen against the encroachments of the Board of Estimate.'

Since 1916 the proposals which have been actively promoted have concerned the control of county, rather than city, salaries. Bills' to that end, affecting both salaries and numbers of employees, came to nothing in the session of 1919. In 1920, however, a measure proposing to centralize control of the compensation of county employees advanced far enough to afford an interesting vote. After passing the Senate by 41 to 5,' it was reported by the Assembly Rules Committee with both the majority and the minority leaders recorded in favor as members of the committee. Suddenly, on the motion of the Republican majority leader, it was recommitted by a vote of 82 to 49. Aside from the members from New York City, the alignment was strictly partisan; all up-State Republicans, with one exception, supported the motion, and all up-state Democrats opposed it. Of the New York City assemblymen who voted, however, only 9 (all Republicans) favored recommittal; 42 City members supported the measure, 23 being Democrats and 19 Republicans. The reluc

'S. Int. 1457, introduced on Apr. 14 by Sen. Patten, Dem., of Kings, proposing a referendum on the question: “ Shall the powers of the Board of Estimate and the Board of Aldermen in respect to salaries be coordinate?". On the previous day Sen. Patten had also introduced S. Int. 1437, providing a scheme of salary control. See also A. Int. 1585.

'S. Int. No. 952, S. Pr. No. 1086 (salaries); S. Int. No. 954, Pr. No. 1088 (numbers), both by Sen. Dunnigan, Dem., of Bronx.

*S. Int. 457, S. Pr. No. 488 (Sen. Downing); A. Rec. No. 170.

*N. Y. Sen. Jour., 1920, p. 603. Of the five opponents of the measure, one was a Bronx Republican, two were Kings Democrats, and two were up-State Republicans.

*N. Y. Ass. Jour., 1920, p. 2993. The distribution of the negative vote, favorable to the measure, was in more detail: Democrats: N. Y. Co., 9; Kings, 6; Queens, 1; Richmond, 1; Bronx, 6; up-State, 6; Republicans : N. Y. Co., 7; Kings, 8; Queens, 4; up-State, 1. An interpretation of the circumstances which evoked this vote is given in the Report of the Committee on Legislation of the Citizens' Union, 1920, p. 40: This action (the report of the measure by the Rules Committee) was taken by the Speaker under the mistaken belief that Republican leaders in New York City desired it. When this 'error' was discovered the Speaker promised that he would have the measure recommitted. New York City politicians lobbied hard for recommittal. The Citizens' Union made it clear to city members that this measure afforded a particularly good test of New York City's sincerity in regard to municipal home rule. As a result, when Majority Leader Adler moved recommittal, a large number of Republican Assemblymen from the city refused to support his motion.”

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