
    The People of the State of New York ex rel. Mary A. Pardee, Appellant, v. John V. Coggey, as Commissioner of Correction of the City of New York, Respondent.
    First Department,
    May 14, 1909.
    Municipal corporations — salary of prison matrons in city of Mew "York — practice — recovery of salary.
    Section 716 of the charter o£ the city of New York is self-acting and under it, without action hy the commissioner or the hoard of aldermen, or other municipal authority, all matrons who have served in the department for more than five years become members of the first grade and are entitled to receive not less than §900 as annual pay or compensation irrespective of any act of the commissioner or of the hoard of aldermen, since the statute itself makes the grade.
    Where a matron has not received the pay provided for toy this section of" the charter, the remedy is by the ordinary action against the city.
    Houghton, J., dissented.
    : Appeal hy the relator, Mary A. Pardee, from an order of the •Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew" York on the 31st day of December, 1908, denying the relator’s motion for a peremptory writ of mandamus to require the defendant to make gradation and classification of the relator, as required by section 716 of the charter of the city of Hew York (Laws of 1901, chap. 466, added by Laws of 1903, chap. 511).
    
      C. E. Hill and George M. Curtis, for the appellant.
    
      Theodore Connoly, for the respondent.
   Ingraham, J.:

The application was made upon the affidavit of the relator, stating that she was one of the matrons attached to the Harlem prison in the city and county of Hew York, having been appointed on the 5th day of July, 1893, by the commissioners of charities and corrections of the city of Hew York, and had served continuously since that time as such matron; that the relator was receiving a salary of about $400 a year, which salary she has received for the past fifteen years ; that by the grading of matrons as provided for by section 716 of the.charter of the city of Hew York, the salary of the relator would be increased, and that she served a demand upon the commissioner of correction that he make gradation and classification of matrons as required by this provision of the charter, and upon that affidavit the relator obtained an' order to show cause why a peremptory writ of mandamus should not issue requiring the commissioner to make such gradation and classification as required by said section. In reply to this application' the affidavit of the commissioner of correction was submitted, which stated that the board of estimate and apportionment had fixed the salary of the relator, at $400 per year, which amount has been paid to her; that on July 16, 1903, the question as to whether this section of- the charter was mandatory was submitted to the corporation counsel, who advised the defendant that he was justified in exercising his judgment in regard to putting in operation the provision of this section, leaving it to the court to decide, if necessary, whether the section was mandatory; and that, relying upon that opinion, he had taken no action in the matter of carrying the provisions of this section into effect. The court at Special Term denied the motion upon the ground that there was nothing in the statute under consideration which indicated that the power conferred upon the respondent was other than permissive and discretionary ; and from the order denying, the motion the relator appeals.

By the amendment of the charter (Laws of 1903, chap. 511) three sections were added which provided for the- appointment, of women who should be known as matrons; By section 715'the matrons were to “ have charge of and eupervision over all women prisoners and all parts of their respective prisons occupied by such women prisoners, or such parts thereof as may be designated to come under their control by the officer in command thereof. At least -one matron shall be on duty in each prison as long: as any woman prisoner is detained therein-. ' Matrons shall also search -all women visiting any part of such prisons, except as. otherwise, ordered by the commissioner.-. No officer other than the matron shall be admitted to the corridor or cells of the women prisoners without the consent of the officer iii charge of said prison.” And the commissioner of correction was authorized to appoint for each prison, jail, workhouse or place of detention now or thereafter under his jurisdiction where women prisoners were detained, at least, one woman and such ether women as in his judgment might be necessary, who should be known as matrons. This appears to be;the first express provision authorizing the appointment of women to this position. The act was mandatory in só far as it required that women, prisoners should be in charge of and supervised by matrons, one of whom should be on duty in each prison-.as long. as: any woman prisoner was detained therein, and it was the duty of the commissioner to provide such matrons so that the act could be complied with. It-’was plainly the- object of this provision that thereafter Women prisoners should be in charge of women jailers or attendants, who were to be known as matrons.

Section 716 of the charter then provides-: “ The matrons -inay be graded into three grades, according to their years of service in the department of correction. All matrons who shall have served more than five years -may be members of the first grade and shall receive not less than nine hundred dollars as animal pay or compensation ; all matrons who shall, have served not more than five nor less than three years may be members of the second grade, and’ shall receive not less than seven hundred and. fifty dollars as annual pay or compensation; all matrons who shall have served less than three years may be members of the third grade and shall receive not less than six hundred dollars as annual pay or compensation; the pay or compensation above provided shall be payable monthly to each person entitled thereto.”

The permissive word “may” is used throughout this section, rather than the more mandatory “ shall,” but the section contains the only provision for the compensation of matrons whose appointment was provided for by section 715 of the charter, and the method of grading is evidently prescribed in order to fix the amount of compensation. The section applies co matrons generally and is not confined to those who may be appointed by the commissioner under the authority granted to him by section 715. For the first time, as would appear, these matrons whose duties were defined in section 715 became employees of the city, whose minimum compensation was expressly fixed by the Legislature. Prior to the insertion of these sections in the charter, under section 694, the commissioner of correction had power within the limits of his appropriation to appoint and remove, subject to the requirements of the Civil Service Laws, such superintendents, wardens and other subordinate officers and assistants as may be necessary for the efficient performance of the duties of the department. And under section 56 of the charter (as amended by chapter 435 of the Laws of 1902) the board of aldermen, upon the recommendation of the board of estimate and apportionment, were required to fix the salary of every officer or person Whose compensation is paid out of the city treasury, other than day laborers and certain members of the department of education therein specified. This provision in regard to fixing salaries was not affected by section 716, except that. a minimum was fixed so that matrons who had served more than five years should receive not less than $900 per annum; matrons who had served not more than five nor less than three years should receive not less than $750 per annum, and matrons who had served less than three years should receive not less than $600 per annum.

It seems to me clear that these matrons would be entitled to receive the minimum compensation provided by section 716 of the» charter, depending upon their years of service in the department, without action of the commissioner of correction or the board of aldermen. The section provides that “ the matrons may be¡ graded into three grades, according to their years of service in the- department . of correction,” There is- no duty imposed upon the commissioner to grade the matrons in the service, nor upon the board-of aldermen to make such grades. . The statute says that tlie matrons “may be graded,”, apd that, all, matrons: who should have served' more than five years “may be members of. the first grade.” There is no provision for matrons who have served more, than -five years in the department being in-any other grade.. The statute thempr.ovides that the members of the first grade “ shall receive not less than nine hundred dollars as annual pay or compensationbut there is no provision for any compensation for matrons who have served more-than five years and who are not-in the first grade. It seems to me clear that.this statute -is self-acting and that under it, without, action by the commissioner or the board of aldermen or other municipal' authority, all matrons who have served in the department for more than five years become members of the first grade and are entitled to receive not less than $900 as annual pay or compensation;, irrespective of any act of the'commissioner or. of the board of alder-men. The. statute itself makes the grade; and while the term “may” is. used,.there is no duty imposed-upon the commissioner or the board of aldermen in relation to grading the matrons; - Thé statute itself divides these matrons into.three grades, and provides, for a minimum compensation, and while undoubtedly the board of. aldermen, on the recommendation .of the board of estimate and ' apportionment, could fix their compensation at a sum greater than $900 per annum, the matrons-, of the first grade-were-absolutely entitled to the minimum rate fixed by section 716 of the charter, namely, $900. per year..

By section 717 of the charter, all persons in -the -employ of the department. of .correction known as matrons or assistant matrons, and all those by whatever name known who had performed the duties of matrons as set. forth in section 715 for the preceding three years in the department: of correction, were appointed matrons1 and continued, in .office under that title.. There -is a point raised by the ^corporation counsel that this section is unconstitutional, -as. an appointment by the .Legislature to-a municipal-position. . I do. -ndt th-inkj. ho we ver, that the section is open to that objection. The effect of it was to continue in their positions tlnose. employees who had performed the duties imposed upon matrons, and to bring them . within the provisions of sections 715 and 716 of the charter. It appears that the relator had been in the employ of the city as an assistant matron for upwards of fifteen years. She, therefore, came within section.717 and continued in the employment of the city, was thereafter designated a matron and became entitled to be graded under section 716 as of the first grade, and, under this section, became entitled to the minimum compensation therein fixed of $900 per year:

It seems to me there is nothing in these three sections that vests-any discretion in the defendant, or contemplates any discretionary act of his, affecting these persons in the employ of the city who became, under the .provisions of these three sections, matrons, as to grading or compensation. Reading the three sections together, the intent of the Legislature seems to be clear. All persons in the employ of the city who had performed the duties of matrons as prescribed by section 715 of tlie charter became the matrons provided for by that section, and by section 716 were graded into three grades according to their years of service in the department of correction.' All those'persons who had served more than five years became members of the first grade and were entitled to receive $900 as their annual pay, payable monthly to each person; and the relator, therefore, was entitled to such, annual pay without further act of the commissioner, the board Of aldermen or the board of estimate and apportionment. If the relator has not received the pay provided for by this section of the charter, her remedy is by the ordinary method of an action against the city.

As nothing in the statute requires any affirmative act on the part ‘ of the defendant to entitle the relator to receive this compensation, the court below was right in refusing to grant a mandamus, and for that reason I think the order appealed from should be affirmed, but under the circumstances, without costs.

Laughlin, Clarke and Scott, . JJ., concurred; Houghton, J., dissented.

}' Order affirmed, without costs. . ' ..- -  