
    People ex rel., Murray et al., v. John McClave, treasurer.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Municipal corporations—Police—Contribution by officer to relief FUND, MUST BE VOLUNTARY—LAWS 1885, CHAPTER 486.
    The treasurer of the board of police of the city of New York, cannot make a deduction from the pay of a member of the force, and turn the same over to the trustees of the “police relief fund,” unless such member desires to avail himself of the privileges and provisions of the act creating the fund.
    Appeal from order general term supreme court, first department, denying application for mandamus to compel the respondent to deduct the sum of two dollars per month from the pay of the police force, and pay the same to the trustees of the pension fund of the city of New York.
    
      Edward M. Shepard and Charles W. Welmore, for the People, etc.; Mr. Dean, for resp’t.
   Danforth, J.

Whether we look at the precise language of the statute in question (Laws 1885, chap. 486), or the substance of the matter included in it, we are brought to the conclusion reached by the general term that the contribution to the fund created by that act must be voluntary; that the defendant cannot, against the will of any member of the police force, deduct for its purpose any portion of his pay; that the relators cannot, without his consent, receive it.

First. Its language. It is entitled “An act to create a relief fund in the police department in all cities of this state having, according to the last census, a population exceeding one million.” By section 2 the fund consists of a sum of money equal to two dollars per month for each member of the police force of said department, and also for each member or employee of the police department other than the said police force, “who shall desire to avail himself of the privileges and provisions of this act, and also for members of the Police Mutual Aid Association of the said department who, at the time of the passage of this act, are in good standing therein, and who shall desire to contribute to said fund, to be paid monthly by the treasurer of the board of police or commissioner of police of said department to the treasurer of the board of trustees of the police relief fund created by this act, from moneys deducted from the pay of such members of said force, or members or employees of said department, and the treasurer of the board of police, or commissioner of police of said department, is hereby authorized and directed to make such deduction from the pay of the members of said xiolice force, as herein provided.”

It is evident that three classes of persons, all within the police department, wrere in the mind of the legislature at the preparation of this act: (1) members of the police force; (2) other members or employees of the department; (3) certain members of the Mutual Aid Association of the department,—and all these were deemed possible beneficiaries. It is also evident, and is conceded by the appellants, that the second and third classes contribute or not, as they please. If they contribute, they share in the privileges of the fund, but otherwise not. They then have an election to make a present use of their money, or, by its surrender, secure a future advantage to their appointee, or widow, or representative.

I am unable to find any reason for placing the first class in a less favorable or different position. The prescribed fee is the same. But it is said in behalf of the appellants, that while as to the second and third class the contribution is voluntary, the legislature has made that of the members, of the force compulsory, by express direction to the defendant, through whom their pay must come, to make the-deduction.

But here is the very point of the controversy. Is he to-make that deduction unless the member of the police force, whose pay he holds, desires to avail himself of the privileges and provisions of the act % ” I think not-.

Nothing can better express the meaning of the statute than the words quoted. In their natural order among the clauses of the section where they stand, they qualify and limit the general words which precede them, and leave each member of the police force, as well as the other classes there enumerated, to determine for himself whether he will accept the opportunity afforded by the statute and make provisions against his death. That is the substance of the statute and its design. The fund created is not for pernsions, nor its benefit confined even to the family of the policeman. No one can share in its advantages who has not contributed; and he who has, may have the sum accruing upon his death paid to such person as he in writing shall direct. Act of 1885, supra, § 4.

The act is beneficent, but the legislature has not sought to compel any one to accept its terms, and it is therefore unnecessary to determine whether they lawfully could or not.

The order appealed from should be affirmed, but without costs.

All concur, except Raballo, J., dissenting, and Miller, J., not voting.  