
    Edward Gilligan, App’lt, v. Town of Waterford, Resp’t.
    
      (Supreme Court, General Term, Third, Department,
    
    
      Filed December 3, 1895.)
    
    1. Office and officer—Compensation,
    A statute, which provides that a bridge erected by the state to be operated at the expense of a town in which it is situated, does not authorize the town to fix the compensation of the bridge tender.
    2. Same.
    In such case, the bridge tender is entitled to recover from the town the difference between the statutory amount and the compensation fixed by the town board, though he received from month to month the amount fixed by the said board.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    Francis A. Martin (I. H. Maynard, of counsel), for app’lt;
    J. W. Atkinson, for resp’t.
   MAYHAM, P. J.

On the 11th of July, 1889, the plaintiff was employed or appointed by the superintendent of public works of the state as bridge tender, to operate a hoist or lift bridge across the Champlain Canal, where it intersects and crosses Broad street, in the town of Waterford. He served in that capacity from the 20th of July, 1889, to the 1st of December of that year,—a period of 1,596 hours. This hoist or lift bridge was constructed by the state under the direction of the superintendent of public works, pursuant to chapter 320 of the Laws of 1888.

Section one of that act provides as follows:

“The superintendent of public works is hereby authorized to construct or cause to be constructed and maintained, at the expense of the state, a lift bridge over the Champlain Canal, at Broad street in the village and town of Waterford, Saratoga county. Said bridge shall, when constructed, be operated at the expense of the town of Waterford, under the direction of the superintendent of public works.”

The balance of the section limits the amount of expenditure, and describes the method of letting the contract, for the construction of the bridge.

In pursuance of that act, the state constructed a bridge at the point indicated, which was completed before the 20th of July, 1889.

Chapter 380 of the Laws of 18$9 took effect on the 6th day of July of that year.

By section 1 of that act it is provided as follows:

“From and after the passing of this act, the wages of day laborers employed by the state, or any officer thereof shall not be less than $2,00 per day, and for all such employed otherwise than day laborers, at the rate of not less than twenty-five cents per hour.”

On the 11th of July, 1889, the superintendent of public works addessed a communication in writing to the supervisor of the town of Waterford as follows:

“John E. Gage,. Esq., Supervisor of Waterford, FT. Y.—Dear Sir: This is to certify that under the provisions of law, that I select the tender of Waterford lift bridge, while the town of Waterford fixes the compensation for such services.
“Very truly yours, James Shanahan,
“Superintendent of Public Works.”

On the 12th of July, 1889, the supervisor called a meeting of the town board of the town of Waterford, at which the following resolution was adopted:

“Besolved, that the sum of $50.00 per month be paid for each man employed for operating the lift bridge for the season of 1889, and that the number of men be'limited to two.”

The ease does not disclose that the plaintiff had any notice or knowledge of the correspondence between Shanahan and the supervisor, to which we have’ referred, or of the adoption of resolution by the town board. The persons designated or selected by the superintendent of public works as bridge tender for this bridge were the plaintiff, Edward Gilligan, and one Mr. Clark. On the 23d day of August, the plaintiff was paid by the town $50 on account of his services as bridge tender, and, at the time of receiving the same, made no claim for additional compensation for his services. On the 26th of September, he was also paid $50, and made no additional claim. And, on the 3d of December, he was paid $66.66, being pay for 11-3 month, at the rate of $50 per month. The testimony of the plaintiff shows that he was appointed by Shanahan, superintendent of public works, to the position of bridge tender, and that he never had any understanding or agreement with the town board as to his compensation. The case shows that the plaintiff never made any claim for more than $50 per month compensation at the time of the performance of the service; that he had received in all $218.38; and that his compensation, if fixed at the rate of $2 per day for a day of eight hours, or 25 cents per hour for the whole number of hours, would aggregate $398, leaving due him upon that basis $180.66, which amount he claimed to recover in this action.

The jury, upon the evidence, under the charge of the judge, rendered a verdict for the defendant; and the plaintiff appeals from the judgment entered upon that verdict. After the rendition of the verdict, the plaintiff moved to set it aside, and for a new trial, xxpon the minutes of the judge, on the ground that the verdict was against the xveight of evidence, and contrary to law, and also upon the exceptions taken at the trial. The motion was entertained and denied, to which the plaintiff excepted.

If, under the circumstances of this case, the town board had authority to fix the compensation of the plaintiff at a rate other than that regulated by statute, we think the jury might, under the evidence in this case, have reached a conclusion that there was an implied contract on the part of the plaintiff to accept the sum of $50 per month; and upon his acceptance of the same, in the manner indicated by the evidence in this case, they might properly have reached a conclusion that the town had paid the plaintiff the amount regulated by such implied contract. But, xxnder the circumstances of this case, and the statute governing the same, we are of the opinion that neither the superintendent of public works nor the authorities of the town had any power to fii upon a different rate of compensation than that regulated by chapter 320 of the Laws of 1888. It is true that the act was repealed by chapter 218 of the Laws of 1890, but that repeal in no way affects the rights of laborers employed by the state, or any officer thereof, during the period for which chapter 380 of the Laws of 1889 i*emained in force. The appointment or employment in this case by the sxxperintendent of pxxblic works was in the proper exercise of the poxver conferred" upon him of operating this lift bridge, which, by the express provisions of chapter 320 of the Laws of 1888, was to be operated xxnder the direction of the sxxperintendent of pxxblic works. The appointment or employment of the plaintiff came cleaidy within the duties imposed upon the sxxperintendent of public works under this act, and the town or the town board had no power, authority, or volition in the selection of such appointee. Nor does it appear from that act that the town board had any power or authority to fix the compensation of such appointee or employee.- The only power or authority conferred upon the town, or duty imposed upon it, was to pay the expense of operating such bridge. This contract went into effect after the enactment of chapter 380 of the Laws of 1889, and was subject to the provisions of that act. All the labor for which this action is brought was performed before its repeal, and must, we think, be compensated for under its provisions. If the plaintiff rendered the services for which this action is brought by the day, his compensation would be $2 for every eight hours’ service performed by him, under section 1 of chapter 385 of the Laws of 1870, making eight hours a day’s work; or, if rendered by the hour, he would be entitled to 25 cents for each hour actually employed. And there seeme to be no controversy in the evidence as to the length of time the plaintiff served under his employment. We think that, upon authority, the questions presented on this case have been fully settled.

In the case of People v. Board of Police, 12 Hun, 653, the question was whether the board of police commissioners could fix the salary of a police surgeon by resolution at a less rate than that fixed for such salary by statute. Even where the. police surgeon had accepted the position, and had drawn his salary at the rate fixed by the resolution for two years, at the end of which period he claimed the salary fixed by law, and demanded compensation at that rate, he was held to be entitled thereto. In that case the court held that the salary fixed by law was his rate of compensation, and Miller, J., in delivering the opinion of the court of appeals, uses this language:

“As the statute gave the salary, I think fixing the amount at a less rate by resolution could not make it less than the statute declared. There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office after appointment is not a waiver of the statutory provisions fixing the salary therefor, and does not establish a binding contract to perform the duties of the offiec for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for salaried officers, and procure officials to act, at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to such a case, and cannot be invoked in aid of the respondent.” 75 N. Y. 42.

The correctness of the rule laid down in the case cited does not seem to have been questioned, and is manifestly sound upon principle.

We have been referred by the learned counsel for the respondent to Larkin v. Village of Brockport, 81 Hun, 364; 63 St. Rep. 140, and the same case as reported in 87 Hun, 573; 68 St. Rep. 664. ¡From an examination of that case, we are clearly of the opinion that it has no direct application to the case at bar. That case, in some of its aspects, was similar to this, in that it was for services of a bridge tender of a bridge across the Erie Canal, which had been constructed by the state, the compensation for tending which was charged upon the village of Brockport by the act under which it was constructed. The amount of compensation was fixed by a resolution of the village trustees on the 5th of June, 1888, and the services were rendered, most of them, under the express contract between the plaintiff and the village trustees to perform the services gt the rate fixed by the resolution. "That contract was in force at the time of the passage of chapter 380 of the Laws of 1889, and it was held, in effect, that the passage of that act did not affect existing contracts. ¡No such question arises in this case.

In Clark v. State, 142 N. Y. 101; 58 St. Rep. 444, it was held that the legislature has power to pass general laws regulating the compensation of laborers employed by the state, or by any officer under its authority, where tíie act disturbs no vested right; and that chapter 380 of the Laws of 1889, which took effect in June of that year, regulating the wages of day laborers employed by the state, or any officer thereof, was constitutional; and that the compensation of a laborer, if so fixed by statute, cannot be reduced by a state officer under whom the laborers are employed, and the fact that the laborer takes for a time a reduced compensation does not estop him from subsequently claiming the residue.

It will be admitted that the compensation in this case was not fixed by the state officer; but it can hardly be successfully maintained that the limitation fixed by that act did not apply to all officers or individuals appointed by a state officer. And, as we have seen that the operation of this bridge was a part of the duty of the superintendedt of public works, the appointment of the la-borers to operate the same was necessarily a duty imposed upon him, and was, in this instance, performed by him, and the employes were therefore employes of a state officer, within the wording of the provision of chapter 380 of the Laws of 1889. That being so, the town board had no power or authority to fix the compensation of such employes at a price less than that specified in that chapter, and it must, we think, be held that the compensation of these bridge tenders comes clearly within the provisions of that law. It is no part of the duty of the court to determine whether that provision of law was wise or unwise. It is enough to know that it was an act of tbe legislature, and that, in enacting it, the legislatm'e acted strictly within its constitutional power.

We think, therefore, that the learned trial judge erred in refusing to bold, as requested, that the plaintiff, as matter of law, was entitled to the statutory compensation.

The payment of the wages of this plaintiff at the rate fixed by statute was charged as a duty upon the town of Waterford, and that duty, when the town fails in its performance, may, we think, he enforced by action.

In People v. Mayor, etc., of City of New York, 25 Wend. 080, it was held that the legislature had power to impose upon the town, in its corporate character, the obligation to pay for the services rendered within its territory, and directly for the benefit of its inhabitants, and the court used in that case this language:

“Here is a legal duty enjoined by competent authority, which the corporation are hound to discharge. It is as binding upon them as if entered into under their corporate seal. Full consideration has been rendered in the services of the officer for the liability thus imposed. An action on the case, or assumpsit, will lie for a neglect of corporate duty.”

The same effect is Canniff v. Mayor, etc., 4 E. D. Smith, 437; Federgreen v. Town of Fallshurgh, 25 Hun, 153.

On the whole case, we think the plaintiff was entitled to recover, and that the judgment must be reversed, and a new trial ordered in the county court; costs to abide the event.

All concur.  