CHAPTER XVII

COMPENSATION

No discussion regarding the rights of a public servant to retain his position in the public service would be complete without some consideration of his right to compensation; for unless he were assured of the reward for his services the various prohibitions against removal would help him but little. It has been said that it is quite impossible to reconcile all the cases upon this subject'. All the questions involved in the recovery of compensation have not been worked out as yet; and much of the following must be taken as tentative and provisional merely. Certain definite principles have, however, been worked out and it is hoped that the following pages will succeed in presenting these with some degree of clearness and accuracy.

CONDITIONS TO RECOVERING COMPENSATION

The right to recover compensation usually depends upon the continuance of the public servant in the public service rather than upon the actual performance of duty. This is generally true of officers and is presumptively true of employees. Salary for a period after the death of a public servant cannot be paid to his representatives because the right to compensation ceases upon his severance from the public service; but as long as a person is actually connected with the service he is not required to show the actual performance of duty. Usually such performance is presumed and non-performance, such as absence without leave, is a matter of defense to be set up and proved by the city.

As a general rule, three things must exist before a person rendering service in the public employ can recover compensation for

1 Sutliffe v. City of New York, 132, A. D. 831, 836 (1909)

2 Peo. ex rel. Culkin v. Prendergast, N. Y. Law Journal, Feb. 26, 1914. Allen v. City of New York, 120 A. D. 539 (1907)

3 Peo. ex rel. Burnet v. Jackson, 85 N. Y. 541 (1881) See also Peo, ex rel. Murphy v. Prendergast, 165 A. D. 186 (1914), affd. 214 N. Y. 664, where the clerk of a justice of the Supreme Court was not allowed to recover salary for the time between the resignation of the justice who first appointed him and his reappointment by another justice.

it: (a) he must have been lawfully employed, (b) his salary or compensation must have been fixed by proper authority and (c) an appropriation for paying it must have been made. This rule is, however, subject to exceptions.

Lawful employment

To establish a claim for services rendered, the person must have been legally entitled to the position which he occupied. Accordingly, no recovery can be had by a person who is disqualified because he comes within a class which is forbidden by statute to hold office or who has been appointed in violation of certain statutes, such as those affecting the police and fire departments1, or public officers, nor can recovery be had by a person who has been appointed in violation of the civil service law3, nor by an appointee of an officer who had no authority to appoint. Similarly a person who has been legally appointed to the public service but has performed additional duties or duties of a higher position than that for which he originally qualified without being regularly promoted or assigned to them, cannot recover the salary of the higher position. His right to recover salary is not determined by the duties which he performed but by the position in the civil service classification to which he has been formally appointed and which he is legally entitled to hold.

Salary fixed

Apparently no employee in the public service can recover for services performed unless a salary has been fixed for his position by the proper authority. There is no implied obligation to pay the reasonable value of the services as there is in private employment. It has been held that where a position was created by the board of coroners, but no salary had been fixed by the board of aldermen, the incumbent could not recover compensation even though he had been legally appointed and had actually performed

1 Charter secs. 284, 734

2 Public Officers Law sec. 3

Graham v. City of New York, 33 Misc. 56 (1900) See McBride v. City of New York, 56 A. D. 520 (1900)

Peo. ex rel. McDonnell v. Prendergast, 167 A. D. 140 (1915)

McCunney v. City of New York, 40 A. D. 482 (1899) Stenson v. City of New York, 40 Misc. 533 (1903) Farrell v. City of Buffalo, 118 A. D. 597 (1907) Thomson v. Board of Education, 201 N. Y. 457 (1911)

Gibson v. Roach, 2 A. D. 86, 88 (1896) Haswell v. Mayor, 81 N. Y. 255, 258 (1880)

the services. An assistant fire marshal sued for salary; and a demurrer was sustained because the complaint did not allege that any salary was attached to his position2.

Some doubt as to this rule may be raised by the case of Peo. ex rel. Bacon v. Board of Supervisors, 105 N. Y. 180 (1887). In that case the board of supervisors, which had power to fix salaries, fixed the salary of the chief clerk in the district attorney's office at $3,000 but later made an appropriation which was not sufficient to pay all the salaries which it had previously fixed. The district attorney appointed a chief clerk at a salary of $1,500 and the appointee after serving for several years brought action to recover the difference between $1,500 and $3,000 which he claimed was the salary legally fixed. The court held that he could not recover the difference, and said that by making an insufficient appropriation the board "plainly indicated an intention on its part to reduce the salaries", adding that "authority was thus impliedly given to the incoming district attorney to make such arrangements with the subordinates to be appointed by him, in the way of scaling down their salaries, as would bring the aggregate amount with the sum to be raised by taxation".

It may be questioned whether the board "plainly indicated an intent to reduce salaries; it is rather more probable that it intended to reduce the number of employees. It is hard to see how the board of supervisors could delegate a power to fix salaries to the district attorney by implication or even expressly. The case does not decide that point for the validity of the salary as fixed by him was not really in question, the only point being whether he could recover $1,500 in addition to the $1,500 he had already received. The question was not before them whether he could have recovered any salary. The decision could perhaps have been based on the ground that the chief clerk has waived his right to a greater amount by consenting to a "scaling down" of salary in order to escape suspension3.

A possible qualification of the rule that the right to sue for compensation depends upon the prior fixing of a salary is found in the case, hereafter discussed, which holds that the local author

10'Connor v. City of New York, 48 Misc. 407 (1905) Munch v. City of New York, 47 Mise. 128 (1905) In the O'Connor case there seems to have been an appropriation from which the salary could have been paid. The budget was not segregated at that time.

2 McGough v. City of New York, 83 A. D. 322 (1903) Hawes v. Board of Education, 160 A. D. 516 (1914)

3 See page 164.

ities cannot prevent the carrying out of a matter which the legislature has made mandatory by refusing or neglecting to take the necessary steps to make it operative.

Appropriation made

It may be laid down as a general rule that in New York City, at least, there can be no recovery for services rendered unless an appropriation has been made from which the salary may be paid1. Charter provisions direct that "no expense shall be incurred by any of the departments, boards or officers thereof, unless an appropriation shall have been previously made covering such expense, nor any expense in excess of the sum appropriated in accordance with law", and that "no charge, claim or liability shall exist or arise against said city . for any sum in excess of the amount appropriated for the several purposes" 2. These provisions have been assumed to make it impossible to incur any liability whatever in excess of the amount appropriated for the several "purposes" and, therefore, to restrict the right of recovering compensation for services to those cases where an appropriation has been made to cover such services. The significance of these provisions as regards salaries has been greatly increased by the adoption of the so-called segregated budget under which each salary may be made by a separate appropriation.

Probably even this rule is subject to qualification3. It has been said that the provisions referred to above must be read in relation to the scheme dividing appropriations into those which are discretionary and those which are mandatory. It was pointed out that there were certain appropriations which the legislature evidently desired should be made, and it was cited as an example that the appropriating body could not prevent the mayor and other statutory officers from collecting their salaries by failing to make any appropriation therefore1.

1 Wittmer v. City of New York, 50 A. D. 482 (1900) Peo. ex rel. O'Loughlin v. Board of Estimate, 167 A. D. 76 (1915) affd. 216 N. Y. Police commissioner cannot be compelled by mandamus to pay a salary for which no appropriation has been made. Peo. ex rel. Daly v. York, 66 A. D. 453 (1901)) 2 Charter secs. 1541, 1542. As to the effect of transferring the appropriation see Peo. ex rel. Colihan v. Miller, 72 Misc. 140 (1911).

3 See McNulty v. City of New York, 168 N. Y. 117, 123 (1901)

Dixon v. City of New York, 31 Misc. 102 (1900). In Matter of McGuire (Prendergast), N. Y. L. J. May 20, 1915, it was said: "I cannot hold that the costs of the commissions on insanity should not be paid because the appropriated funds have been exhausted without also holding that the commissioners themselves should not be paid for the same reason. To hold the latter point would obstruct justice and would be unconstitutional as tending to deprive defendants of rights which courts acting under legislative authority have provided that such defendants may have.'

This distinction finds support in other cases. In Kip v. City of Buffalo, 123 N. Y. 152 (1890) a person was allowed to recover compensation for services rendered even though no appropriation had been made and apparently no salary fixed. There the state law required provision to be made for carrying out the civil service law. The mayor appointed the plaintiff as secretary for carrying out such work and requested an appropriation of $600 for salary. The common council cut this to $50. The court held that where the council had placed in the tax budget a merely nominal sum for carrying out the civil service law the city was nevertheless liable to an officer legally appointed under the provision of the civil service act for an amount which should be a reasonable compensation for his services.

In the case of Grant v. City of Rochester, 79 A. D. 460 (1903), affirmed on the opinion below in 175 N. Y. 473, an official was allowed to recover salary in excess of the amount appropriated. The board of estimate which had the sole power of fixing the salary of the commissioner of public works had fixed it at $4,000 a year. The common council attempted to reduce it to $3,600 and thereafter adopted a tax budget and schedules containing an appropriation of salary for the commissioner of public works at $3,600. The mayor thereafter appointed Grant as commissioner and he agreed to accept $3,600. When the board of estimate submitted the next tentative budget his salary was stated at $3,600 and this was the amount appropriated. After accepting and receipting for this amount he brought action to recover the difference between it and the $4,000 as originally fixed. The court allowed recovery, holding that he was entitled to his legally fixed salary, which was $4,000 and that the action of the common council could not deprive him of it. An important feature in the case was the charter provision that such a salary could not be changed during the term of office of the officer receiving it'.

Whether the holder of a position, for which the budget has named a sum less than the amount of the salary as legally fixed, may sue for and recover the difference will be considered later2.

AMOUNT OF RECOVERY

The amount of salary which the public servant is entitled to recover upon satisfying the necessary conditions is the amount

1 From the case of Pryor v. City of Rochester, 166 N. Y. 548 (1901) it appears that there were charter provisions which prohibited expenditures in excess of the amounts appropriated.

2 Page 168 et seq.