
    COURT OF APPEALS.
    Andrew Kehn agt. The State of New York.
    
      Albany (city of) — Mremen iñíjte capítol—Pay of—Btatutoi'y salary cannqi be reduced except by law.
    
    
      \
    
    The provision in the general appropriation-act of 1875 that “the compensation of the men employed as firemen in the capítol is hereby fixed at three dollars per day to each of them; said salaries shall he paid upon the certificate of the keeper of the capítol,”' is prospective and applies to firemen in the capítol employed subsequent to the ^ear in which such appropriation act was passed.
    The pay of a fireman to which this provision is applicable cannot bo reduced except bylaw, as his case falls within the decision bf this court in People agt. Board of Police (75 N. T.. 42).
    In applying the principle that a statutory salary cannot be reduced except by law, it is immaterial whether the person whose salary is so fixed is or is not an officer so long as he is specified in the statute fixing, his salary.
    The acceptance of reduced pay for a portion of the time that services are rendered does not operate as an estoppel from afterwards recovering in an action the full rate prescribed by the statute.
    
      October Term, 1883.
    Appeal from judgment of the general term of the supreme court of the third department, affirming a decision of the board of audit disallowing the claim of Andrew Kehn.
    At general term Boarditan, J., delivered the following opinion in this and another case before it:
    These are appeals from the awards of the board of audit, brought under chapter 211, Laws of 1881. The cases are alike in their facts and the principles which must control the decision.
    There was a conflict of evidence before the board of audit. The state officers claim a hiring of the defendants as laborers for the time for which payment is now claimed at one dollar and fifty cents per day.
    
      The defendants claim three dollars per day by virtue of a law fixing the pay of fireman at that rate.
    The evidence satisfactorily shows that the defendants were each hired and agreed to work for the price of one dollar and fifty cents per day. That rate should therefore control, unless the law fixing firemen’s pay at three dollars is conclusive upon us. We do not think it is, for two reasons:
    
      First. That defendants were not employed as firemen, and it was so understood by the parties.
    
      Second. That if wrong in the first reason assigned, the rate fixed by the statute may be modified and reduced by the contract and agreement of the parties, the board of audit properly held that the defendants were entitled to one dollar and fifty cents per day only. But the claim of each defendant, as we understand the facts, embraced a sum of money actually due the defendants in accordance with the decisions of the board of audit, at one dollar and fifty cents per day. The decisions of the board therefore dismissing the respective claims of plaintiff is open to be misconstrued, as insisted upon, as a bar to any further claim - by either plaintiff for such acknowledged balance due. To obviate any possible wrong in this respect we think the award should be affirmed in such case, but neither such award nor this affirmance shall bar or prevent the several plaintiffs from demanding and receiving from the State the balance still unpaid them, respectively, at and after the rate of one dollar and fifty cents per day, and now conceded to be still due them. lío costs of this appeal allowed. Order to be settled by Boabdmakt, J., if not agreed upon by the attorneys.
    The facts are sufficiently stated in the opinion of Bappalo, J.
    
      Edward J. Meegan, for appellant:
    I. The statute fixed the pay of firemen employed in the capítol at three dollars per day as their salaries (Laws of 1875, p. 801). (a) The provision of the statute is as follows: “For the capítol, for expenses, for repairs, and deficiency in appropriation for cleaning, labor, gas and other necessary-expenses, the sum of §16,000, and the compensation of the women employed in cleaning the chambers and rooms adjoining the senate and assembly chambers is hereby fixed at two dollars per day to eaoh of them ; and the compensation of the men employed as firemen in the capitol, is hereby fixed at three dollars per day to each of them. Said salaries shall be paid upon the certificate of the keeper of the capitol.” This statute prescribed an imperative rule of action for the guidance of the disbursing agent of the state. A salary was in express terms fixed and definitely established and upon the performance of duty as a fireman the salary attached as a result and an incident; the employment'was indelibly stamped with the legislative impression of the value of the services to the state and which it was willing to pay. If it had been intended to confer upon any official power or discretion to vary this declared and adjudged salary and to reduce it, the law-making power could easily have so provided. Because this provision is contained in the appropriation bill does not affect it. It was competent for the legislature to make use of this general law through which to formulate its wishes in this regard; this provision was germane to the general subject of the act. It is well known that provisions establishing permanent rales are frequently incorporated in this bill, as the authority to create additional deputy attorn eysgeneral (Laws of 1800, p. 251), and also various provisions w.ith reference to the new capitol, &c. Our- claim is that it was intended by this section to prescribe a rule to guide official action in the future, otherwise the mere appropriation would have sufficed with words adjusting the salaries for the year 1875. Unless, it is submitted, the words of a statute command such a construction,' it is to have effect and' operation for the future. “ It is a first principle in legislation that all laws are to operate prospectively” (Jackson agt. Van Zandt, 12 Johns., 176). This act of 1875, in its allusion to the capitol, referred to what is now called the old capitol building. The Revised Statutes make this proposition plain and clear, it enacts: “ Sec. 1. The buildings in the city of Albany now known as the capitol and state hall shall cbntinue to be known and denominated by those names” (1 R. S. [7th ed.], 581). Both statutes being in pari materia are to be construed together, and to ascertain the legislative intent it would be appropriate in reading the act of 1875 to add after the words “ firemen of the capitol,” the definition of that word as given in the Revised Statutes, to wit: “ The building in the city of Albany now known as the capitol shall continue to be so known and designated.” And it is to be noted that this section of the Revised Statutes has not been repealed. It is a fair and reasonable assumption that the legislature intended the building now called the “ old capitol,” and not a migratory name which in the future might be applied to any other building. The old capitol. building continued to be used under the same management and by the same officers after January 1,1879 (the date fixed by the joint resolution of May 14, 1878, Laws of 1878, p. 519, when the new capitol building is declared to be the capitol of the state of Hew York), for the purposes'of the state government, state officers, including the governor, and the court of appeals performing their official functions therein; and the necessity for the services of firemen continued as well after as before the senate and assembly took their abode in the new structure, and full provision was in each year specifically made for the care of the new capitol building. Again, the Revised Statutes provide for trustees of the capitol, committing its care and custody to them (1 R. S. [7th ed.], 582; Laws of 1830, chop. 249). And by chapter 325 of the Laws of 1881, those trustees of the capitol are not to assume control of the new capitol until the first day of January following the demolition of the old capitol. The addition of the adjectives “new” or “ old” does not change the effect of the noun “ capitol” as the new building was in course of construction when the act of 1875 in question went into operation; and as the new building was and is under an entirely different system of management, the old management and regulations with reference to the old building should be held to be in force as to that building. The appropriations for the old capitol during the years 1879, 1880 and 1881, are made under the title or caption of “capitol” (Laws of 1879, p. 214; 1 Laws of 1880, p. 254; Laws of 1881, p. 276). ¡No significance should be ascribed to the fact that in 1880 and 1881 the salary of the superintendent was fixed in the appropriation bill at §1,200 per annum; because prior to that time the same course was adopted (Laws of 1878, p. 33). It is important to note that, as to the women employed, the act of 1875 in question carefully restrict their employment to the cleaning of the chambers and rooms adjoining, of the senate and assembly, while as to the men employed as firemen, there is no restriction whatever. They are not employed to make fires to heat rooms occupied by the "senate and assembly.
    II. The appellant was duty appointed one of the firemen of the capitol, he was therefore entitled to the salary, three dollars per day, as fixed by the statute, and the attempt to reduce it during the summer months to one dollar and fifty cents per day was illegal,and.ineffectual, (a) This court has established the rule that the salary of an officer, as fixed by statute, cannot be reduced except by law duty enacted. The salary attaches to the position (The People ex rel. Satterlee agt. Board of Police, 75 N. Y., 42; The People ex rel. Ryan agt. French, 13 Reporter, 599). In the People ex rel. Ryan agt. French (supra) it was held that the police commissioners of ¡New York city have no power to reduce the salary of an officer who is unable to do duty because of injuries received in the performance of his duty. In the late case of the People ex rel. Nugent agt. Board of Police (27 Hun, 261) a policeman was placed under arrest by his superior officer for burglary, and remained in prison some time, when he was tried and acquitted, it was held that he was entitled to his salary during the time he was in prison. The rule is the same in Virginia. In Montague's Administrator agt. Massey (13 Rep., 
      700) the supreme court of appeals held that where the legislature attempts by a legislative enactment to reduce the salary of a judge, and the act is subsequently declared to be unconstitutional, the acceptance of the reduced salary by the judge without protest or objection, during the period of the life of the enactment is not a waiver of his right to the entire salary, nor is he estopped from claiming it. The reasons of the rule are explained by Miller, J., in 75 New York, 42 : “ 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 bylaw. The acceptance and discharge of the duties of the office, after appointment, is not a waiver of a statutory provision fixing the salary thereof, and does not establish a binding contract to perform the duties of the office for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer, 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 any such case, and cannot be invoked to aid the respondent.” Judge Christian (13 Reporter, supra, 701) thus explains the rule : “ Certainly the receipt or acceptance of a part of a debt is not a sátisfaction of the whole, and such receipt or acceptance of a part cannot be held as a waiver of the right to recover the balance. See the leading case of Cumber agt. Wane (1 Smith L. C., 595, and cases there cited), containing a most exhaustive discussion of the whole Subject which makes it unnecessary to refer to any other authorities. These principles, settled with reference to transactions between man and man, apply, I think a multo fortiori, to transactions between a state and one of its citizens.” “ When an act of congress declares that an officer of the government, or public agent, shall receive a certain compensation for his services, which is specified in the law, that compensation can neither be enlarged nor diminished by a regulation or order of the president, or of a department, unless the power to do so is given by act of congress ” (Goldsborough agt. United States, Taney's C. C. Dec., 80). In this case it was insisted that the purser (claimant) did not come within the description of an officer, to which Taney, Oh. J., replied: “ It would be a sufficient answer to say that the compensation of the purser is undoubtedly specified in the law, and he is therefore within the general principle before stated ” (Id., 89). There is no difference in principle between the foregoing cases and the one at bar. In all the cases public services were required and a salary was prescribed, and whether the appellant was or not a technical officer should make no difference. The statute is mandatory. He was to receive a salary of three dollars per day, and as long as he was retained in the place he should receive it. The services to be rendered by him were the same in all seasons, summer and winter. The reasons given as to policemen apply with equal force to the position of the appellant. It is significant that the statute employs the word “ salary ” not “ wages.” But the rule which prevails between master and servant is equally effective for the appellant. It is well stated, as follows : “ Section 106. Wages cannot be reduced during the term. Where by the terms of a contract for a year’s service, or any other definite period, the compensation is fixed at a certain price per month, or for the term, the employer cannot reduce the price to be paid by a notice to the servant that he cannot pay him more than a certain sum after a certain time. In order to reduce the contract price, the consent of the servant to such reduction must be clearly shown, and the fact that he remained in the master’s service after notice that a reduction would be made is not evidence from which such consent can be implied. He not only had a right, but was bound to remain until his term was completed, unless the master discharged him, or he elected to leave because of a legal excuse furnished by the master ” (Wood’s Master and 
      
      Servant, p. 205). This case is totally unlike the recent case of O'Brien agt. The Mayor (29 Hun, 250). In that case the plaintiff had been appointed an engineer at $1,500 per annum ; he afterwards consented to serve in a different capacity, that is, as a machinist at less pay, and it was held he could not recover the difference in salaries. In Drew agt. Mayor (8 Hun, 445), judge Beady dissented and judge Daniels concurred with judge Davis on this ground : “ If he (the plaintiff) made no agreement to receive sixty dollars per month, he should have offered proof of that fact.”
    III. There is no foundation for a claim that the appellant ever agreed or consented to the reduction of his salary one-half. It clearly appears that there was a perfect contract or employment as fireman with the appellant to take effect May 1,1880. Upon this the minds of the parties met. The notice of reduction was never assented to by the appellant; he always claimed the full salary. Can this notice be called a contract? He was appointed as a fireman but once. There is no pretense that he was rehired after September 30, 1880, as such, yet his services thereafter are continued and recognized at the full salary. The appellant entered the service of the state May 1, 1880, and until the twenty-third of that month was paid three dollars per day; after that for the next five months he received pay at the rate of one dollar and fifty cents per day; for the next ensuing eight months and until May 21, 1881, he was again paid three dollars per day ; for about one month after-wards the pay was at the rate of one dollar and fifty cents per day; and from June 30, 18S1, to the time of filing the claim, which included the summer months of 1881, he received no pay; in other words, he performed the same kind of services for twenty months, six months of which time under a duress of poverty he received half his salary only. The notice to the appellant, after the employment was complete, as to the contemplated deduction, and his acceptance, under objection for a small portion of the time, of the reduced salary are not sufficient to constitute an agreement. It was his duty to perform the services. It is an important fact that, although during the summer of 1881, the state accepted the services of the appellant, he refused to take pay unless, the full salary was paid. This statute authorized the employment of firemen, the .general duties of whom are well known;' it would be strange, then, if one member of a board of officers possessed the power of employing laborers instead of firemen to do the work of firemen. Express authority being conferred to do an act in a certain way, no implied power exists to perform it in another way. It was, therefore, out of the power of Hyde, representing the comptroller alone of the board of trustees, to make any contract to reduce the salary of the firemen.
    
      D. B. Keeler, deputy attorney-general, for respondent:
    I. The appellant was entitled to receive but one dollar and fifty cents per day for his work during the summer months, and his agreement with the superintendent to that effect was binding upon him. (a.) The clause in the statute of 1875 did not apply to his hiring; that statute contained provisions for the care and maintenance of the capítol for the year 1875; so far as it relates to the firemen its language is in the present tense. It in no way related to the future. Besides, in the years 1880 and 1881 the building in which the claimant was employed was not the capítol (Laws 1878, p. 519). (b.) The contract which the appellant made was binding upon him (Phyfe agt. Eisner, 49 N. Y., 102; Drew agt. Mayor, 8 Hun, 445),
    II. The appellant was not an officer but only a laborer; he took no oath of office, no trust was confided to him, no discretion to manage was given to him, no term for his employment was fixed by law or otherwise; he was subject to the direction of the trustees and was to be discharged at will (Sullivan agt. Mayor, 47 How. Pr., 493). (a.) In Satterly agt. Mayor (75 N. Y., 38) the plaintiff was a police surgeon, an officer, who took an oath of office and his salary was fixed by the year, which clearly distinguishes it from this case.
   Rappalo, J.

The uneontroverted evidence shows that on. the 1st of May, 1880, the appellant was employed by Mr. Hyde, snperintendent of the old capítol, as fireman therein, and continued to serve in that capacity from the time of his employment until the filing of his claim before the board of audit, which was in November or December, 1881.

He claims pay at the rate of three dollars per day during that period, by virtue of a provision in the general appropriation act of 1875, which reads as follows : “And the compensation of the men employed as firemen in the capítol is hereby fixed, at three dollars per day to each of them ; said salaries shall be; paid upon the certificate of the beeper of the capitol.”

The appellant was paid at the rate thus prescribed by law,, from the time of his employment up to the 24th of May, 1880, when the superintendent, claiming to act under the direction of the comptroller, refused to allow him more than one dollar and fifty cents per day during the summer months, and he made this reduction for the periods from May 24, 1880, to September 30, 1880; from May 21, 1881, to June 30, 1881.

The appellant received the reduced pay during these periods, but there is no evidence that he ever agreed to the reduction. From June 30, 1881, to September 3D, 1881,. he declined to receive the reduced pay, and has been paid nothing.

The present claim is for the sum necessary fo> make up his full pay of three dollars per day up to September 30, 1881. The board of audit rejected the claim,, and on- appeal to the supreme court, the general term sustained the decision on two grounds. First, that the appellant was. hired and agreed to work for one dollar and fifty cents per day, and was not employed as fireman. Second, that, if otherwise, the rate fixed by statute for fireman’s pay might he modified and. reduced by the agreement of the parties.

The first ground is, we think, wholly untenable under the' evidence. The testimony is positive and uncontroverted that the appellant was employed as fireman, and not in any other capacity. The superintendent himself testified that he had employed the appellant as one of the firemen on the 1st of May, 1880 ; that he did not discharge him as fireman, and did not hire him over as laborer; that fires were made during the summer months for the purpose of drying out the dampness; that these men (appellant and another) made the fires ; that it was their duty to make them, and that they were on duty ready to make them. He does not allege that they ever agreed to a reduction in their pay, bnt testified that he used his own discretion as to the time when their wages should be "reduced.

As to the second ground upon which the general term placed their decision, we think it comes within the decision of this court, in People ex rel. Satterlee agt. Board of Police (75 N. Y., 42), where it was held that the board of police commissioners could not reduce the amount fixed by law as the salary of a police surgeon, and procure persons to act at-a less sum than the statute prescribed. To the same effect is Goldsborough agt. United States (Taney's C. C. Decisions, 80). In that case it was further held- that it was immaterial whether the person whose salary is fixed by law, is or is not an officer, so long as he is specified in the law fixing his salary. The present case, however, is stronger than either of those cited, At ,the time the appellaiit entered into the "service his pay was fixed by law, and there is no evidence that he ever consented to a change. It was reduced by the superintendent, and for .a portion of the time the appellant took the reduced pay, but" that does not estop him from claiming his full pay if he was legally entitled to it (Montague agt. Massey, 13 Reporter, 701). ■

On the present -appeal the attorney-general raises the point that the statute'of 1875 fixing the rate of appellant’s pay did not apply to thé firemen employed in the old capítol building in 1880 and 1881, a ground not taken by the general term.

At the time of-the passage of the act of 1875 the old capítol building was the only one known as the capítol. • This name was declared by law and was to continue. The trustees of the capítol had its care and custody (Laws of 1830, chap. 249), and are not to assume control of. the new capítol until the first of January following the demolition of the old capítol (Laws of 1881, chap. 325, sec. 4).

The provision fixing the salaries of the firemen employed in the capitol had reference to the old capítol, and had not, in 1881, been repealed. It was clearly prospective and not confined to the firemen in the service in 1875.

We think the appellant was entitled to a salary of three dollars per day so long as he was retained as fireman, and that his claim should have been allowed.

The judgments of the general term and of the board of audit should, therefore, be reversed and judgment rendered in favor of the appellant for the amount of his claim, with costs.

All concur, except Eabl, J., not acting."  