
    The People of the State of New York ex rel. Homer N. Cuyle, Respondent, v. Fred A. Robbins and Others, as the Board of Police Commissioners of the City of Hornellsville, N. Y., Appellants.
    Fourth Department;
    November, 1905.
    Special policeman not entitled to continuous duty .under provisions of charter of city of Hornellsville.
    The charter of the city of Hornellsville (Laws of 1888, chap. 40, tit. 10, § 11, as amd. by Laws of 1890, chap. 472), which provides that special policemen appointed by the board of police commissioners, shall hold their office for such period as the board shall direct but shall not receive or be entitled to any fees or compensation except as expressly provided by the board, does not entitle such special policemen to be kept continually on duty, and, though such appointment be general as to term of office, the policemen are only entitled to work as called upon to do so by the board.
    Appeal by the defendants, Fred A. Bobbins and others, as the board of police commissioners of the city of Hornellsville, N". Y., from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Steuben on the Í7th day of June, 1905, upon an order entered in said clerk’s office on the 20th day of J une, 1905, directing the issuance of a peremptory writ of mandamus, and also from the writ of mandamus issued in pursuance of said order and entered in said clerk’s office on the 20th day of June, 1905.
    
      Milo M. Acker, for the appellants.
    
      F. J. for the respondent,.
   Williams, J.:

The judgment and order should be reversed, with costs, and the writ dismissed-, with fifty dollars costs and disbursements.

The writ required the board of police commissioners to recognize the relator Cuyle as a special' policeman of the city of Hornellsville, and to order the chief' of police to assign him to duty forthwith."

The board do not deny that Cuyle is a special policeman of the city, that he was duly and regularly appointed, and has never resigned nor. been removed. z

The question here involved is whether he is entitled to be assigned to and kept continuously on duty, which would; involve payment for full time, or whether the assigning him to duty is within the ’discretion of the board, which involves'payment for such time as he is actually on duty under such assignment.

The practice heretofore has been to use the special policemen only a portion of the time, whenever the board regarded them services as necessary, and to pay them only for the time they .actually served.. Cuyle, as well as other special policemen, has been so treated, and has accepted pay for the time he has served only. ■

Now it is claimed, under the law, that a different rule is applicable, and these special'policemen aré entitled to work all the time .and to be paid for full time. The statute under which the 'board acts in appointing policemen, and using them and providing for their pay, is found in the city charter (Laws of 1888, chap. 40, titi. 10 amd. by Laws of 1890, chap. 472). Section. 1 of said title provides that the police department of the city shall be under the general direction and control of the board. Section 3 thereof provides that the board may establish, promulgate and enforce proper rules, regulations and orders for the good government and discipline of the whole force. Section 5 thereof (as amd. by Laws of 1892, chap. 585) provides that it shall be the duty of the board to appoint so many permanent policemen as they may deem necessary, not to exceed eight, on-the force, excépt as afterwards otherwise provided in the act, and also a chief of police, who shall have the immediate direction and control of the force, subject to the direction of the 'board. Said section further provides that the chief Of police and each permanent policeman may hold his respective office during good behavior, or until duly removed by the board. Section 7 of said title provides, that the salary of the chief and permanent policemen shall be determined by the board. Section 11 thereof provides that the board shall also have power to appoint so many special policemen as in their judgment public interest requires, who shall hold their office for such period as the board shall direct, and shall discharge all the duties of policemen under the act and the statutes of the State, subject to such limitations and restrictions as the board shall fix and 'prescribe, but that such special policemen shall not recei/oe or be entitled to any fees or compensation, except as expressly provided by the board. Section 12 thereof provides that the mayor shall be authorized to appoint so'many special policemen-as in his judgment public interest requires, who shall hold their office for such period as he shall direct, not exceeding two weeks under any one appointment, and shall receive such compensation as shall be fixed by the board, the rate not to exceed that allowed to the policemen of the city. Under these provisions the board has no power to appoint more than eight permanent policemen, besides the chief. It must fix their compensation. It may also appoint special policemen, but the number thereof is unlimited, and their term is unlimited, only the good judgment of the board limits the number or term. The mayor may also appoint special policemen; the number is unlimited, the term is limited to two weeks. The compensation of. the permanent policemen, the chief and the mayor’s special policemen is required to be fixed by the board, and they are certainly entitled to be paid for all the time they serve at the rate fixed.

The provision as to the special policemen appointed by the board is different, however. The statute does not require the board to fix any compensation for them, but on the contrary provides that they shall not receive or be entitled to any fees or compensation except as expressly provided by the boao-d. These special policemen are not entitled to any pay, therefore, merely because they are appointed. If they are not asked to perform any duty, and no pay is provided for them, they cannot complain. They need not serve unless they see fit without pay, or if the pay is too small. If the board sees fit to provide for paying them one-half the time or oné-third the time, and let them understand they need not serve except for the time they are to be paid, the policemen have n'o right to complain, and cannot compel payment by the city other than as provided by the board.

It is said the appointment should not. be general, as to term, unless, compensation is provided for all the time, that the appointment should be made for short, definite terms, and as often as the board see fit to provide compensation for those terms. We see no objection to the general appointment and providing compensation only for. the time they are required' to serve., Such a course is not prohibited by the statute, and very likely it is better to have special policemen always under appointment, that can be called into active service immediately when needed. Provision' is made for short appointments, for special occasions, by the mayor.

It is suggested that these Special policemen when appointed have to serve all the time' and can do no other business. They have to take the appointment, if at all, under the restrictions and burdens provided by the law, as to compensation as well' as service, and they need not take the appointment unless they want to. Section 11. of title 10 of thé charter expressly provides these special policemen shall discharge all the duties of policemen' under thé act and the statutes of thé State, subject to such limitations and • restrictions as the board shall fix ánd prescribe. May the., board, under this provision, not limit or restrict the special policemen to service only when their services are required? To hold that-these special policemen when appointed,may serve full time and have full pay would be to give the board power to make a number oflsubstantially permanent policemen beyond the limited number,' eight, in violation of the statute.

It is said, finally, that the board has fixed the compensation of~ special policemen at the same amount as permanent ones, and, therefore, the special policemen are entitled as matter of right to serve all the time and- be paid for such time, the same as permanent policemen. We do not think the resolution of the board should be so construed. It fixed the' salary of permanent police-. men under section- 7 of title 10. of-the charter. There may'have been no resolution expressly providing for the compensation of special policemen, but it had grown into a general custom or practice . to pay them at the same rate' as permanent policemen for the time théy actually served. An’d Chyle had served as others had, and had been paid in this way. There is no express provision for any other rate of compensation to special policemen, and Cuyle will have to accept what the board have established as the rate by custom or practice, or serve without any compensation at all, or refuse the appointment. There can be no doubt that the'board had the right by resolution to expressly provide that compensation should only be allowed for such timé as it actually required him to serve.

A good deal has been said by counsel and the referee and by us here about compensation to which Cuyle is entitled, not because he is in this proceeding asking for pay, but because the right to serve and to his pay are so closely connected. The consideration that the charter has left the compensation wholly within the control of the board, they having the power to allow much or little or no compensation at all, has a strong bearing upon the question which is here, the right to be assigned to du-ty and to work all the while. We do not think such right exists, and Cuyle only insists upon it for the purpose of finally getting full pay. We cannot suppose he desires to work without pay, or. for any longer timé than he is to receive pay.

We conclude that the peremptory writ was improperly issued.

All concurred.

Judgment and order reversed, with costs, and writ dismissed, with fifty dollars costs and disbursements.  