
    Patrolmen’s Benevolent Association of the City of New York, Respondent, v City of New York, Appellant. Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor.
    Argued October 12, 1976;
    decided December 22, 1976
    
      
      W. Bernard Richland, Corporation Counsel (James G. Greilsheimer and L. Kevin Sheridan of counsel), New York City, for appellant.
    
      Frederick R. Livingston, Jay W. Waks and William C. Zifchak, New York City, for respondent.
    
      Louis J. Lefkowitz, Attorney-General (George D. Zuckerman and Samuel A. Hirshowitz of counsel), New York City, for intervenor.
   Wachtler, J.

This is an action by the Patrolmen’s Benevolent Association of the City of New York, Inc., seeking to enforce an order and judgment requiring the City of New York to pay a 6% salary increase for the 1975-1976 fiscal year. On this appeal the city contends, inter alia, that it is prohibited from paying the increase by the wage freeze legislation adopted by the Legislature in September, 1975.

Having failed to reach accord on the terms of a collective bargaining agreement to cover the two-year period beginning July 1, 1974, the PBA and the city submitted their dispute to an impasse panel pursuant to the provisions of the New York City Collective Bargaining Law (Administrative Code of City of New York, § 1173-1.0 et seq.). The decision and recommendations of the impasse panel, handed down on April 30, 1975, provided that the PBA be granted an 8% salary increase for the first year to be covered by the contract. The salary increase for the second year was set at 6%. The panel’s findings were accepted in writing by both parties and neither sought to appeal the determination to the Board of Collective Bargaining, although that avenue was open to them. Subsequently, the panel’s findings were incorporated into a tentative collective bargaining agreement. While the representative of the PBA signed this tentative agreement, the city refused to do so, giving as a reason the city’s increasingly grave financial outlook.

Faced with the city’s refusal to execute and perform the agreement, the PBA, by order to show cause, brought on a proceeding under CPLR article 75 to confirm the award of the impasse panel. The city cross-moved to dismiss the petition on the ground that the decision of the impasse panel did not constitute an award within the meaning of article 75. The city’s cross motion was denied. The city having subsequently failed to timely serve its answer to the petition, the petition was granted upon default, and the impasse panel’s determination was confirmed by an order and judgment dated and entered on July 1, 1975.

Thereafter the city commenced computing and paying the retroactive salary increase for the 1974-1975 fiscal year and the increase ordered for the 1975-1976 fiscal year, in compliance with the terms of the July 1 order. In September, 1975, however, the Legislature enacted the law freezing the wages of the city’s employees (L 1975, ch 868, § 2, subd 10, as amd by L 1975, ch 870, §11), and the city immediately discontinued paying the 1975-1976 increase.

The PBA then moved to compel the city to comply with the July 1, 1975 judgment, and the city opposed the motion. The PBA urged that the wage freeze should not be imposed in their case since their salary increase was contained in a judgment of a court and the legislation had no application to wage increases pursuant to judicial judgments. They also mounted a broadside constitutional attack against the statute imposing the wage freeze. The city, on the other hand, asserted that the legislation did apply to the instant set of facts and that the statute suffered no constitutional infirmity.

The lower court held that the wage freeze legislation was not applicable to the instant case involving a salary increase embodied in a judicial judgment. Nevertheless, that court imposed a stay on the enforcement of its judgment until June 30, 1978, declaring that it was doing so "in the interests of justice and equity and in an attempt to further the recovery of the City of New York from its financial plight”. Both parties appealed that court’s determination.

On appeal the Appellate Division also found that the wage freeze legislation did not cover judgments. In addition, they modified the lower court’s order by deleting that portion staying enforcement of the order since "there [was] neither warrant here for judicial legislation nor power to do so.” Having so held, the Appellate Division certified the following question: "Was the order of this court, entered April 26, 1976, properly made?”

The pertinent provision of the wage freeze legislation provides: "Increases in salary or wages of employees of the city * * * which have taken effect since June thirtieth, nineteen hundred seventy-five or which will take effect after that date pursuant to collective bargaining agreements or other analogous contracts, now in existence or hereinafter entered into * * * are hereby suspended.” The threshold question now before us, therefore, is whether this statute applies to the present case.

It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature (Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38; see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556), and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used (Bender v Jamaica Hosp., 40 NY2d 560; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Meltzer v Koenigsberg, 302 NY 523; Matter of De Peyster, 210 NY 216). The statute under scrutiny in this case suspends wage increases "pursuant to collective bargaining agreements or other analogous contracts.” In this case, the wage increase did not "take effect” by virtue of a collective bargaining agreement,, but rather it took effect as the result of a judicially mandated remedy embodied in a judgment. Even if it would be constitutionally permissible for a statute to suspend a judgment, nowhere is there language which would suggest this legislative intent; nor can it be said that the language employed permits an interpretation which would broaden the scope of the statute so as to encompass such increases (see New Amsterdam Cas. Co. v Stecker, supra; Matter of Patrolmen’s Benevolent Assn. of City of Buffalo v City of Buffalo, 50 AD2d 101). Hence, where as here the statute describes the particular situations in which it is to apply, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 240).

Had the Legislature intended that the wage freeze also apply to situations involving judicially mandated salary increases, they were free, assuming arguendo constitutional validity, to draft appropriately worded legislation (cf. Bright Homes v Wright, 8 NY2d 157). We would but note that the statute in question was adopted some two months after the July 1 judgment requiring that the city pay the salary increase and we must assume the Legislature was well aware of this fact when the statute was passed. Other statutes, adopted at the same time as the wage freeze law and also seeking to alleviate the financial plight of the city, by their very terms have specific application to judgments (see, e.g., Local Finance Law, § 85.10, L 1975, ch 870, § 24; Local Finance Law, § 85.30, L 1975, ch 870, § 26).

Nor is our view altered because the July 1 judgment was one confirming the award of the impasse panel. "A judgment entered upon the confirmation of an arbitral award has the same force and effect in all respects as * * * a judgment in an action” (23 Carmody-Wait 2d, NY Prac, § 141:186; see Jacobowitz v Herson, 268 NY 130, 135-136).

Finally, we are in agreement with the Appellate Division in its holding that the lower court was without power to stay the enforcement of its order (see Matter of Young v Gerosa, 11 AD2d 67, 74; accord Matter of Bird v McGoldrick, 277 NY 492, 500).

We find no merit in any of the other arguments proffered by the city.

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered affirmatively.

Jasen, J. (dissenting).

I agree with Judge Cooke that the wage increase awarded to New York City police officers by the impasse panel is encompassed by the terms of the wage freeze legislation. To his discussion, I would add but one observation. It is undisputed that had the city agreed to the wage increase voluntarily the wage freeze statute would apply. I fail to see how the city’s position is undermined, and the statute rendered inapplicable, because the city exhausted every available procedural and judicial avenue in an effort to resist the payment of a wage increase. The net result of the collective bargaining procedures and the litigation commenced to enforce the impasse panel’s award is to require the city, in a collective bargaining agreement and setting, to pay wage increases to one class of its employees. This is exactly what the statute was designed to freeze.

I also agree with Judge Cooke, although on more narrow grounds, that there is no constitutional impediment to the enforcement of wage freeze legislation. To be sure, a collective bargaining agreement is a contract. Although the Federal Constitution prohibits the States from impairing contractual obligations (US Const, art I, § 10), the constitutional prohibition has never been read literally. (See Home Bldg. & Loan Assn, v Blaisdell, 290 US 398, 429.) The cases establish, all too conclusively, that the language of the Constitution does not mean exactly what it says. The cases also establish, again conclusively, that the impairment clause has been interpreted variously, and sometimes inconsistently, by different courts, both institutionally and compositionally, confronted with factual settings. The diffused lines of authority result not from any institutional or judicial failure to adequately articulate often close reasoning. The difficulty results from the fact that, once the literal approach is rejected, the clause becomes amorphous. Its scope cannot be shaped from its sparse language. Shape is given by judicial holdings, rather than by abstract and abstracted judicial language.

It suffices in this case to state that the impairment clause and the impairment cases never stripped from the States the power to regulate the terms and conditions of work for municipal employees. Whether couched in terms of emergency power or public policy, a State certainly has warrant to adjust the terms of public employment in order to cope with exigent circumstances. The intimate relation between government and its employees permits flexibility of a kind that is absent from agreements between private parties. More dramatically, the same elasticity is missing from the relationship existing between government and its creditors. (Cf. Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731.) Flexibility does not, of course, mean that public employers can abrogate contracts with employees at will. Municipal employees are public servants; but they are not public serfs. The State and its subdivisions are not feudal landlords who may move employees around or adjust their compensation by whim or caprice. However, the State’s exercise of its residual power over municipal employees is, in this case, far from whimsical and far from capricious.

The City of New York, it is hardly necessary to state, is confronted by a grave financial emergency. Much of the debt with which the city is confronted is constitutional debt—debt which the city must, by Constitution, pay. Obviously, payment requires the city to make budgetary adjustments. Since expenses relating to personnel constitute a significant and quite sizeable budgetary allotment, obviously, too, personnel expenses are candidates for reduction. Here, too, the city is faced with fixed and vested pension payments that are constitutionally unassailable. (NY Const, art V, § 7.) Instead, it is again apparent that future benefit increases are a prime target for the budgetary axe. It is significant, in this connection, that the State has made substantial contributions necessary to sustain governmental operations of the city. It is not unreasonable for the Legislature to demand, as a condition, for State assistance, that the city does not increase its expenses at a time when all State taxpayers are contributing the moneys necessary to avert local fiscal collapse. Although the city cannot deflect responsibility, it is not without significance that the wage freeze has been ordered by the State. It is also not without significance that the city had been resisting wage increases and, but for the collective bargaining procedures provided by the Legislature, such increases would never have been. Moreover, the increases have not been abrogated but "suspended”. The city’s faith, in this instance, has been good; there is no direct constitutional provision prohibiting wage freezes nor can such prohibition be drawn by reasonable implication. The measures taken by the State have been appropriate to the circumstances. Hence, I conclude that the wage freeze statute is constitutional.

For these reasons, I would reverse the order of the Appellate Division.

Cooke, J. (dissenting).

I dissent and vote to reverse.

The majority’s construction of the terms of the Financial Emergency Act (L 1975, ch 868, § 2, subd 10, as amd by L 1975, ch 870, § 11) elevates form over substance. The act suspends wage increases "pursuant to collective bargaining agreements or other analogous contracts.” The judgment of Special Term confirming the impasse panel’s award did not create the police officers’ right to the wage increases. The right was obtained "pursuant to collective bargaining” to which the parties were required to submit; the judgment was merely an attempt to enforce that which had been obtained pursuant to the collective bargaining. It is as simple as that.

The majority asserts that since the statute describes "particular situations” to which it applies, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (quoting from McKinney’s Cons Laws of NY, Book 1, Statutes, § 240). This analysis misapplies the quoted principle and overlooks various other dominant principles of statutory construction.

First of all, the statute speaks to "Increases in salary or wages * * * pursuant to collective bargaining agreements or other analogous contracts.” The judgment obtained was not separate and apart from the collective bargaining agreement on which it was based. A judgment does not create new rights but defines and determines what rights already exist. That the terms "agreements or other analogous contracts” embrace judgments obtained for the enforcement thereof has been determined previously and effectively by this very court in Jacobs v Newman (254 NY 298). There, at the close of testimony, the complaint was dismissed on the ground that under the defendant’s contract, he was obligated to pay to the plaintiff only one half the payments made by plaintiff to Kelsey "pursuant to the said Kelsey contract,” and that the plaintiff defaulted under that contract and subsequent payments were made not "pursuant to that contract” but in settlement of a judgment obtained against the plaintiff (p 302). This court held that dismissal was error and that it rested upon "too narrow a construction of the defendant’s obligation” (p 302). It was held at pages 303-304: "Here the plaintiff’s previous default under the contract with Kelsey had resulted in Kelsey declaring the full purchase price due and bringing an action to recover that price. That action did not terminate the contract of sale. On the contrary, it was based upon the existence of the contract and was brought to enforce the obligation of the contract. (D’Aprile v. Turner-Looker Co., 239 N. Y. 427.) Title to the stock still remained in the plaintiff or plaintiff’s assignee, and the stock was still held as security for the purchase price. Even though in a sense the original obligation of plaintiff to Kelsey was merged in the judgment, the judgment does not obliterate the essential features of the obligation on which it is rendered. ’ (Murphy v. Manning, 134 Mass. 488.)” (Emphasis added.) Here, too, the judgment did not terminate the collective bargaining agreement and was merely a part of the enforcement of the obligation of that agreement.

A review of these other principles manifests the technical nature of the majority’s analysis. In construing a statute, the " 'intent of the Legislature in enacting legislation is the primary object to be found’ ” and " '[wjhenever such intention is apparent it must be followed in construing the statute’ ” (Matter of Astman v Kelly, 2 NY2d 567, 572; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 92, subd a). " 'It is a familiar legal maxim that "he who considers merely the letter of an instrument goes but skin deep into its meaning”, and all statutes are to be construed according to their meaning, not according to the letter’ ” (Matter of River Brand Rice Mills v Latrobe Brewing Co., 305 NY 36, 43-44). Here, it is clear that the Legislature intended to suspend wage increases during a period of financial emergency. In using the term "collective bargaining agreements” in the act, it must be assumed that the Legislature knew that judgments might be obtained to enforce such agreements. It is totally unreasonable to assume that by omitting the term judgments from the act, the Legislature intended to allow a particular group of employees to overcome the effect of the act by obtaining a judgment. By this reasoning, if the act had used the term "judgment”, but failed to use the term "award”, a wage increase pursuant to the award of an impasse panel, would not be subject to the wage freeze.

The fact that other portions of the act refer specifically to judgments (Local Finance Law, §§ 85.10, 85.30; L 1975, ch 868, § 19, as repealed and superseded by L 1975, ch 870, §§ 24, 26, respectively), casts little light on the intention of the Legislature with respect to the wage freeze, since those provisions of the act were designed specifically to deal with "claims” against the municipality.

The majority states that the act does not apply in this case because "the wage increase did not 'take effect’ by virtue of a collective bargaining agreement” (p 208). This misreads the act, which in relevant part provides: "Increases in salary or wages of employees of the city * * * which have taken effect since June thirtieth, nineteen hundred seventy-five or which will take effect after that date pursuant to collective bargaining agreements or other analogous contracts, now in existence or hereinafter entered into * * * are hereby suspended.” (Emphasis added.) The words "taken effect” and "take effect” modify the reference to June 30 or dates thereafter and do not modify the words "pursuant to collective bargaining agreements.” The Legislature intended to limit the act to wage increases that "take effect” after a certain date and that is why the drafters inserted the words "take effect”; the words were not inserted to limit the act to wage increases that "take effect” pursuant to collective bargaining agreements as contrasted with judgments. Moreover, even if one were to accept the majority’s interpretation, it is still no more than a strained attempt to say that, because a judgment was obtained, the wage increase was not pursuant to collective bargaining.

The majority further notes that since "the statute in question was adopted some two months after the July 1 judgment requiring that the city pay the salary increase * * * we must assume the Legislature was well aware of this fact when the statute was passed” (p 209). This does not mean that the Legislature intended to omit judgments from the act. One may just as easily assume not only, as the majority implies, that the Legislature was aware of the judgment, but also that it was rendered on July 1, and, therefore, that the act was made applicable to wage increases "which have taken effect since June thirtieth” specifically to cover this wage increase.

It is a recognized principle that "statutes promoting the public good are liberally construed” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 341; see Englishbe v Helmuth, 3 NY 294; People v Dennis, 206 Misc 402 [Munder, J.]). There can be no doubt that the purpose of the Financial Emergency Act was to protect the public from the chaos that would result from the inability of the city to continue to provide essential services (see L 1975, ch 868, § 1). Yet, under the guise of literal interpretation of the act, the majority imposes a technical construction of its terms which defeats that purpose.

The fundamental constitutional principle of the separation of powers among the three departments of government is included by implication in the pattern of government adopted by the State of New York (Matter of Gottlieb v Duryea, 38 AD2d 634, affd 30 NY2d 807, cert den 409 US 1008). Under this principle of separation of powers, it is fundamental that courts may not without warrant restrict the scope of legislation in a manner that would thwart the legislative policy or engraft exceptions where none exist (see Matter of People [Lawyers Westchester Mtge. & Tit. Co.], 288 NY 40, 50; 9 NY Jur, Constitutional Law, § 118).

There is no question but that the act applies to judgments arising out of the negotiating contracts and, therefore, we should reach the PBA’s contentions as to the act’s validity.

It is asserted that the judgment obtained at Special Term may not be impaired by the subsequent passage of the act suspending wage increases. In this respect, it is sufficient to note that where a statute "is enacted after judgment and pending appeal, the appellate court may dispose of the case in accordance with the law as changed by the statute” (Robinson v Robins Dry Dock & Repair Co., 238 NY 271, 281; cf. Matter of Demisay, Inc. v Petito, 31 NY2d 896; see Veix v Sixth Ward Assn., 310 US 32; United States v Schooner Peggy, 1 Cranch [5 US] 103, 110; see, generally, 1 Antieau, Modern Constitutional Law, § 3:33, p 254).

The next and principal contention of the PBA is that the act contravenes the Federal contract clause (US Const, art I, § 10). In this respect, the case of Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y. (40 NY2d 731, 740) has no application here, since there the majority stated: "The Federal issues are not reached and therefore cases construing Federal constitutional provisions, especially the impairment clause, cast little light on the State constitutional issues in this case.” Here, there are no State constitutional provisions that in any sense are determinative. Although the respondents contend that the wage freeze violates the prohibition of impairment of pension benefits in the State Constitution (NY Const, art V, § 7), it is sufficient to note that existing benefits are not impaired by the act; the only effect of the act is to prevent increased benefits that may be derived from a wage increase (cf. Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95). Equally without merit is the PBA’s contention that the creation of the Emergency Financial Control Board pursuant to the act is a violation of the "Home Rule” guarantee (art IX, § 1) of the State Constitution (see Matter of Toia v Regan, 40 NY2d 837, 838; cf. Wein v City of New York, 36 NY2d 610, 619-620)

Turning then to the question of whether the Federal contract clause prohibits the wage freeze, the principles are well established. As one noted authority has stated: "When a state permits within its jurisdiction certain contracts, or enters into contracts itself with private parties, it always reserves the right as a sovereign to make whatever changes are necessary to protect the public health, safety, morality or general welfare.” (1 Antieau, Modern Constitutional Law, § 3:30, p 250.)

This principle was derived from the ruling of the United States Supreme Court in Home Bldg. & Loan Assn, v Blaisdell (290 US 398) wherein it was stated (pp 434-435): "Not only is the constitutional provision qualified by the measure of control which the State retains over remedial processes, but the State also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end ’has the result of modifying or abrogating contracts already in effect. ’ Stephenson v. Binford, 287 U. S. 251, 276. Not only are existing laws read into contracts in order to fx obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwile,—a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.” (Emphasis added.) Indeed, there can be no doubt of the broad application , of these principles for: "[t]he economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts” (290 US, at p 437).

Despite the broad language of the court in Blaisdell, it is argued that the exercise of the police power is limited to a temporary impairment and that, thus, depending on the degree of impairment, in some instances the State may not exercise the police power to provide essential services. This same argument was raised in Blaisdell and there the court responded: "The argument is pressed that in the cases we have cited the obligation of contracts was affected only incidentally. This argument proceeds upon a misconception. The question is not whether the legislative action affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end” (290 US, at p 438). Here, the legislation is most assuredly addressed to a legitimate end. The Legislature expressly found that "a financial emergency * * * exists in the city of New York. The city is unable to obtain the funds needed by the city to continue to provide essential services to its inhabitants or to meet its obligations to the holders * * * These events [nonpayments to unpaid employees, vendors and suppliers, recipients of public assistance and city obligations] would effectively force the city to stop operating as a viable governmental entity and create a clear and present danger to the health, safety and welfare of its inhabitants * * * If the city were unable, because of the lack of funds, to function in its normal manner, the economy of the state would, therefore, be drastically harmed * * * This situation is a disaster and creates a state of emergency” (L 1975, ch 868, § 1).

The PBA argues, however, that the legislative measures here taken are not reasonable and appropriate. This argument is totally without merit. It is indeed reasonable and appropriate to freeze wages and to take various other measures to reduce expenditures in order to provide funds for essential services—such as hospitals, schools, fire protection, sanitation and indeed, even a continuation of police protection itself. The need for the State to act for the general welfare of its people was definitively expressed in East N. Y. Bank v Hahn (326 US 230, 232-233) in this manner:

"The Blaisdell case and decisions rendered since (e.g., Honeyman v. Jacobs, 306 U. S. 539; Veix v. Sixth Ward Assn., 310 U. S. 32; Gelfert v. National City Bank, 313 U. S. 221; Faitoute Co. v. Asbury Park, 316 U. S. 502), yield this governing constitutional principle: when a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the State 'to safeguard the vital interests of its people,’ 290 U. S. at 434, is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.

"The formal mode of reasoning by means of which this 'protective power of the State,’ 290 U. S. at 440, is acknowledged is of little moment. It may be treated as an implied condition of every contract and, as such, as much part of the contract as though it were written into it, whereby the State’s exercise of its power enforces, and does not impair, a contract. A more candid statement is to recognize, as was said in Manigault v. Springs, supra, that the power 'which in its various ramiñcations is known as the police power, is an exercise of the sovereign right of the Government to protect the * * * general welfare of the people, and is paramount to any rights under contracts between individuals. ’ 199 U. S. at 480. Once we are in this domain of the reserve power of a State we must respect the 'wide discretion on the part of the legislature in determining what is and what is not necessary.’ Ibid. So far as the constitutional issue is concerned, 'the power of the State when otherwise justified,’ Marcus Brown Co. v. Feldman, 256 U. S. 170, 198, is not diminished because a private contract may be affected.” (Emphasis added.)

The cases of Worthen Co. v Thomas (292 US 426) and Worthen Co. v Kavanaugh (295 US 56), relied on by the PBA, are not determinative of whether a wage freeze is reasonable and appropriate to the city’s efforts at continuing essential services. It must be stressed that the standard to be applied is not whether the measures taken by the Legislature are sufficiently temporary but, rather, whether such measures are reasonable and appropriate (see Home Bldg. & Loan Assn, v Blaisdell, 290 US 398, 438, supra). Moreover, any notion that only very limited temporary measures are permissible under Blaisdell has been disavowed subsequent to the cases relied on by the PBA (see Veix v Sixth Ward Assn., 310 US 32, 39-41, supra).

The narrow ground upon which Judge Jasen resolves the constitutional issue is not in line with prevailing cases as they have developed. The key to this case is the relationship between the State and all its people and not the relationship between the State and public employees. Under Blaisdell, if the legislation is reasonable and appropriate, it is permissible even if it interferes with the rights of private parties, as well as public employees.

As stated in Blaisdell (290 US, pp 447-448), whether the legislation is wise or unwise as a matter of policy is a question with which we are not concerned. That is not the court’s function.

Without question, the cases are legion, the principles well established, and the wage freeze provision of the act should be declared constitutional.

Accordingly, there should be a reversal.

Chief Judge Breitel and Judges Gabrielli and Jones concur with Judge Wachtler; Judges Jasen and Cooke dissent and vote to reverse in separate dissenting opinions; Judge Fuchsberg taking no part.

Order affirmed, with costs. Question certified answered in the affirmative. 
      
       This section cited by the majority, at page 414, itself states: "The maxim expressio unius est exclusio alterius is not, however, an ironbound rule of law excluding in all cases from the operation of a statute those things which are not enumerated therein. It is merely an aid to be utilized in ascertaining the meaning of a statute when its language is ambiguous, and should be applied to accomplish the legislative intention, not to defeat it. If the language of a statute indicates that other things than those mentioned are intended to be included within its operation, the maxim will not necessarily require their exclusion, but in such case the intention to the contrary must be discernable from the context of the act itself.” (Emphasis added.)
     