
    WILLIAM H. WOOD, Plaintiff and Appellant, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, Defendant and Respondent.
    I. Excess of power.
    1. When exercise of does not invalidate that which falls within the power.
    
      (a) Where that which is authorized neither depends on nor is a mere incident to, nor flows- out of that which is in excess.
    II. Officer, salary of.
    1. Liability of corporation of the City of New York.
    
      (a) Not liable where there has been no performance of the duties of the office.
    HI. New York city and county.
    1. Fire Department.
    
    
      (d) Sentence of board of fire commissioners, effect.
    1. While section 85, ch. 137, Laws 1870, was in force, a fireman was tried on, and found guilty of, a certain ctiarge preferred against him, and the board of fire commissioners sentenced him to be “retired from active service on an annuity of §150, to date from 13th inst.”
    Held,
    1. Though the board may, not have power to grant the annuity, yet its action in retiring the fireman was valid and operative.
    3. The sentence of retirement was in substance and effect one of discharge and dismissal from the service.
    3. That the fireman not having performed any service after such discharge, was not entitled to the salary attached to the position of fireman thereafter accruing.
    Before Speijr and Freedman, JJ.
    
      Decided November 4, 1878.
    Plaintiff was appointed a foreman in the Fire Department of the city of New York in 1865. In August, 1872, a certain charge was preferred against him. He was tried on the charge before the committee on discipline of the fire department. The committee found him guilty, and its sentence was that his resignation be demanded. The trial was reopened, when he was again found guilty by the committee, and sentenced to be retired from the service of the department on an annuity of $150, to date from September 12, 1872. On the action of the committee being reported to tfie board of fire commissioners, the action taken by that body on September 11, 1872, thus appears in its minutes: “ On motion, William H. Wood of Engine Company No. 33, was retired from active service in the department on an annuity of $150, to date from the 12th instant.”
    He was paid his salary up to November 1, 1872. He performed no duty and was not recognized as a fireman after September 11, 1872.
    This action was brought to recover the salary from November 1, 1872, to March 1, 1875. The salary of a foreman is fixed by law.
    The judge presiding at the trial of the action directed a verdict for plaintiff for the full amount of his claim; but the learned judge afterwards, on a motion to set aside the verdict, rendered a decision setting it aside, and ordering a new trial. An order was entered in conformity with this decision, from which plaintiff appeals. ■
    
      I. II. &N. L. Vanderzee, attorneys, and of counsel for appellant:
    I. The plaintiff was not dismissed, and is therefore entitled to his pay, and the verdict should not have been disturbed. The sentence passed upon the plaintiff on September 11, 1872, did not dismiss him. from the service. He was simply retired from active service. The latter portion of the motion, providing for an annuity of $150, was illegal, inoperative, and void. The board had no power to grant an annuity in this case. This being so, all that remains of their sentence is, that plaintiff was retired from active service in the department. There being no law fixing the salary of retired officers, the salary must, remain the same as that of active officers.
    II. But the entire action of the commissioners was unauthorized and void. They had no power to retire the plaintiff from active service, nor power to grant him an annuity. Their whole action was a nullity, without force or vitality. The board was organized under an act passed March 30, 1865, and their powers and duties concerning removals were defined by that act, as follows : “ The said commissioners shall have power to select ... as many officers, clerks, firemen and appointees as may be necessary, and the same shall be at all times under the control of said commissioners, . . . and may be removed by said commissioners” (Section 14 of said act). This power resided in the commissioners arbitrarily, and could be exercised for cause or without cause. Where arbitrary power is conferred by the legislature it must be strictly enforced, for no presumption of discretion is permissible (Heywood v. City of Buffalo, 14 N. Y. [4 Kernan], 537, &c.). The sentence imposed upon the plaintiff in none of its parts is in accordance with the statute authorizing the fire commissioners to remove its subordinates, and therefore is not a sentence which they could impose.
    III. It cannot be successfully insisted that the sentence imposed upon the plaintiff was intended, or is in effect a sentence of removal, (a) Because the power lodged in the commissioners being arbitrary, their action must literally comply with the terms of the act conferring it, and wherever their action fails so to literally comply with the act, it is void, and as though it had not been uttered. (6) Because the facts show that the commissioners had no such intention. After an investigation of the charges made against the plaintiff, the committee on discipline proposed, a sentence retiring- him, from the service, of the department. This sentence was never confirmed by the board of fire commissioners. They, in effect, decided not to dismiss him, as the committee proposed, bnt simply to retire him from active service in the department, They do not remove him from, the department, and as they were, in effect, recommended by. the- committee on discipline to dismiss him, but, instead of following that recommendation, modify the sentence, the plain inference is, that they did not intend to dismiss him,, as they were recommended to do by the. committee.
    IY. Certiorari will not, for the reasons above stated, lie. In any event certiorari is needless. Certiorari is needed only where the decision, affects a substantial right; but where the finding is void—where it does, not affect a substantial right-—certiorari is needless (Heywood v. City of Buffalo, above cited). The. action of the fire commissioners does not affect the plaintiff. 1st. It is void, 3d. There is not a word in that, sentence which affects the pay of the plaintiff.
    Y. The board of fire commissioners, as organized by law at the time of the action, complained of; by the plaintiff, was not constituted as the present board isj In the case, of the present board, which is, in effect constituted a judicial body, it might have been necessary to resort to certiorari; but the board whose action we are now considering, was not, either- in fact or in effect, a judicial body, or- invested with the. semblance of judicial authority, and their proceedings were not the subject of certiorari.
    
      Wm. O. Whitney, counsel, to corporation, with D. J. Bean, of counsel for respondents.:
    I. The pow;er of the commissioners to, discharge the plaintiff is not com. tested; but it is contended that their order, that he be retired from, service is. not a, discharge. The. defendants argue 'that retiring the plaintiff from service was an effectual discharge. The retiring was absolute, unconditional, and unlimited. The plaintiff was thereby relieved the control and discipline of the board of commissioners, and could no longer be commanded or assigned to duty by them. He ceased to be a fireman, and could no longer exercise authority in the department. He was at liberty to engage in other employment, and was completely released from any claim of the fire department to his time or service. No element of discharge was wanting when he was unconditionally retired from service.
    II. The plaintiff, not having performed service, cannot recover the "compensation attached to the office. Title to the office alone will not sustain a claim for the salary, "even when the officer has been excluded by the unauthorized or Wrongful act of the commissioners. The act of the commissioners may have resulted in preventing the plaintiff from enjoying the opportunity to earn the salary of a fireman ; for such a wrong, the law will supply an appropriate remedy against the wrongdoer. But the city is only "obliged to pay salaries when, having possession of the office, the officer has performed such service as was necessary. No contract exists between the plaintiff and the defendants, by Which the defendants are obliged to pay the salary, whether the plaintiff exercises the duties of the office or not. The court of appeals has already had occasion to examine the question as to the right of a public officer to draw from the public either salary or fees, When no services have actually been rendered. In the first of these cases, Judge Ruggles, delivering the opinion of the court, expressed himself as follows: “The right to the compensation arose out of the ren'dition of the services, and not out of any contract between 'the government and the officer that the services shall be rendered by him” (Connor v. Mayor, &c., 1 Seld. 285). This opinion was recognized and reaffirmed in the later case of Smith v. Mayor, 37 N. Y. 518. See also McVeany v. Mayor, 1 Hun, 37.
   By the Court.—Freedman, J.

The board of fire commissioners, as organized by law at the time of the action complained of by plaintiff,- was not constituted as the present board is. The present board has no power to make removals except in the manner prescribed by the charter of 1873 ; but the former board, it is conceded, had power to appoint and- remove firemen at pleasure (Laws 1870, ch. 137, § 85).

In 1872 the plaintiff was a foreman of a fire engine company in the fire department of the city of Mew York, at a salary of $1,500 per annum. As such he was, during said year, tried upon a certain charge, found guilty, and sentenced by the board of commissioners to be retired from active service in the department on an annuity of $15P.

The board may have had no power to grant the annuity, but from the fact that one was granted, it does not follow that the whole of the sentence was illegal. The unobjectionable part of it operated as a discharge and relieved the plaintiff from the control and discipline of the board. He could no longer exercise authority in .the department, and he could no longer be commanded or assigned to duty as a fireman. He was at liberty to engage in other employment, and completely released from any claim of the fire department to his time or services. And as matter of fact he subsequently never was called upon to perform any duty, or recognized as a fireman.

This being so, and the plaintiff not having performed the duties of the office since that time, it is difficult to perceive how he can recover the compensation which would have attached if he had performed the duties. The corporation of the city of Mew York is only liable to pay such compensation when the officer, having possession of the office, has performed the necessary services. No contract exists between the plaintiff and the corporation, by which the latter is bound to pay the salary irrespective of the question whether the plaintiff exercises the duties of the office or not. In a case like the present, the right to the salary arises out of the rendition of services, and not out of any contract between the government and the officer that the services shall be rendered by him (Conner v. Mayor, &c., 1 Seld. 285; Smith v. Mayor, &c., 37 N. Y. 518 ; McVeany v. Mayor, &c., 1 Hun, 35).

The order setting aside the verdict and ordering a new trial must be affirmed with costs.

Speer, J., concurred. 
      
       Note. Compare Dolan v. Mayor, &c., of New York, 68 N. Y. 274.
     