
    The People ex rel. The A. Filkins Hose Co. et al., App’lts, v. William H. Son, Treas’r, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June 1, 1892.)
    
    Municipal corporations—Fire department—Distribution of insurance moneys.
    Relatora and other companies are members of the fire department which was organized by the trustees of the village of Amsterdam in pursuance of its charter, with a membership in steamer companies of 100 men ; hose companies SO, and hook and ladder companies 40, and said board also resolved that the moneys received from foreign insurance companies should be divided between the fire companies in proportion to their respective number of members. The department has been continued under the charter of the city, and the provision as to division of the moneys has not been rescinded by the common council. Held, that the board of trustees under its supervisory power of the fire department had power to regulate the distribution of the fund, and their order not having been revoked or modified by the common council must be regarded as still in force and the money disposed of under its directions.
    Appeal from the final order of the special term, denying relator’s motion for a peremptory mandamus and dismissing the alternative writ of mandamus.
    
    
      Edward J. Maxwell, for app’lts; O. S. Nisbet, for resp’t.
   Mayham, P. J.

The contest in this case arises out of a-disagreement as to the proper division and distribution of the funds received by the respondent as treasurer of the fire department of the city of Amsterdam from the agents of insurance companies, under the provisions of chap. 465 of the Laws of 1875, and the various amendments thereto.

The act makes it the duty of every agent doing a fire insurance business within the limits of any city or incorporated village to. annually pay to the treasurer of the fire department of such city or village two dollars on every hundred dollars of premiums received for insurance on property located in such city or village. The defendant, as such treasurer, received the sum in controversy under that law, and the relators insist that they, consisting of the various hose and hook and ladder companies of the city, shall each share that fund equally with all other engine and fire companies in that city.

The statute under which this money is required to be paid to' the treasurer of the fire department, or to the treasurer of the village or city when the fire department has no treasurer, does not indicate or direct how this fund shall be distributed among or bo used by the fire companies constituting the fire department of the cities or villages, to whose treasurer it is required to be paid. We must, therefore, look to the city or village charter, or to the authorized acts of the city government, or the fire department, for some ordinance, resolution, rule or custom for the distribution of this fund.

The answer to the alternative writ denies that all of the relators are members of or constitute a part of the fire department of the city of Amsterdam, and alleges that if the relators which are duly incorporated do constitute a part of the fire department, they are not as companies to share equally in such fund with all the other fire, or engine or steamer companies, and that such fund is not to be divided equally by companies, but per capita in proportion to the maximum number of men in each company, and that by regulation long established and acted upon by the village of Amsterdam, and since its incorporation as a city acquiesced in and adopted by it, the maximum membership of a steamer and hose company was and is 100 men, and of each hose company thirty men, and of each hook and ladder company forty men, and this fund has, by resolution of the department and uniform usage, been distributed to the companies in proportion to their respective number of members. Upon the issue thus framed, the referee to-whom it was referred found as facts that all of the organizations named as relators are members of the fire department; and that the fire department was originally established by the board of trustees of the village of Amsterdam, who fixed by resolution, some time prior to the year 1875, the maximum number of the several companies, t-o consist of 100 men to each steamer and hose-company, thirty men to each hose company, and forty men to each hook and ladder company; and that the fire department of the village became the fire department of the city of Amsterdam on its incorporation.

The referee also found as a fact that the board of trustees of the village of Amsterdam, by resolution, directed that the moneys received from foreign insurance companies be divided among the-several companies composing the fire department pro rata in proportion to the number of members of said companies as fixed by the board of trustees; and that such resolution has never been rescinded by the board of trustees or the common council of the-city of Amsterdam.

The referee also found that prior to the commencement of this action the firemen, at an annual meeting voted to rescind a resolution that had been passed by them in 1888, providing that the insurance moneys be divided pro rata among the several companies in proportion to their number of members.

The referee found upon the facts of this case, that as matter of law the trustees of the village and the common council of the city of Amsterdam had authority to regulate the number of members of the various fire companies' in the village and city, and to apportion and distribute this insurance fund, and that the fire department had no power or authority to apportion this fund among the various companies composing the fire department, and held that the relators were not entitled to a peremptory mandamus, and that the defendant was entitled to judgment dismissing the alternative writ. By the charter of the village of Amsterdam (chapter 889, Laws 1854), the trustees of the village were authorized to organize and establish a fire department

Subdivision 33 of § 3 of title 3 of the charter provides as follows : “ The board of trustees are authorized to' organize and establish a fire department, to be composed of one or more fire, hook and ladder, bucket and hose companies in said village * * and to prescribe the powers and duties of each of said ■companies and of all the members thereof.”

It is -true that by this sub-division the maximum in each company was not to exceed sixty men, and we have not been referred to any statutory authority conferred upon the board of trustees to increase the number in any case to 100.

By chapter 582 of the Laws of 1875, the treasurer of the fire ■department of the village of Amsterdam was made one of the officers of such village, and by § 3 of that act he was authorized to collect and receive all moneys belonging to, or that may grow ■due to that department, and pay the same over to the several ■companies composing said fire department, as they shall be entitled to the same.

As there is no statute definitely defining the method of distribution of this insurance fund, and as the fire department was the creation of the board of trustees, which by the statute above referred to had authority to prescribe the powers and ■duties of each of said companies and all the members thereof, it was but a reasonable exercise of that power to direct the manner in which a subordinate officer of the village should distribute that fund.

As we have seen the referee finds, as a fact, that the board of village- trustees assumed to, and did exercise that power, and by resolution directed the payment of such money to the companies in proportion to their maximum members as fixed by such board, and that method of distribution was for some time followed and acquiesced in by the members of the fire department, and was in operation at the time of the adoption of the ■city charter in 1885.

By -that charter the common council took the place of the village trustees, with the same or increased powers conferred by statute, and it was by § 104 of that charter empowered to establish and maintain an efficient fire department, and make all necessary rules and regulations for the government and discipline of the same, and by § 108 of the charter the fire department of the village of Amsterdam became the fire department of the city.

The common council have never rescinded the resolution of the board of trustees in relation to the distribution of this fund, .and if that resolution was authorized and valid, it is by the express terms of the charter still operative. Section-128 of the charter (chapter 131, Laws of 1885), provides that: “The existing ordinances, by-laws, resolutions and regulations of the trustees of the village of Amsterdam, as the same shall be in force when this act shall take effect, shall be and continue in force, and shall have the same force and effect * * * as if duly adopted by the common council of the city, until the samo shall .have been repealed ¡by the common council of said city.”

If we are right in our construction that the board of village trustees, under its general supervisory power bf the fire department, could regulate the distribution of this fund so long as they acted in harmony with the general scope and purpose for which, this money was given, which manifestly was to improve the efficiency of the various fire departments of the cities and villages of this state, then it follows that the resolution passed by that board must remain operative until the same is repealed, either by them or their successors in authority, the common council of this «city. It has been held that the treasurer of the fire department should under the directions of the trustees of the village or common council of the city pay over all the moneys received or recovered under the first, second and third sections of chapter 465 of the Laws of 1875, to the fire department of the city or incorporated village in which the department is located, Trustees of Exempt Firemen's Fund v. Roome, 29 Hun, 396, and in this case on appeal to the court of appeals that court, in discussing the relation which a fire department in a city or village bears to the municipality, use this language in speaking of firemen and fire companies : “Their duties were public duties; the service they rendered was a public service; their appointment comes from the ■common council * * * they were liable to be removed by the authority which appointed them, and were intrusted with the ■care and management of the apparatus owned by the city. They .are at least a public body, and perhaps are best described as a subordinate governmental agency.”

Tested by these reasons, we see no ground for holding in this ■case that the board of trustees of the village did not possess the ¡lower to make the order they did in relation to the distribution •of these funds; and as that order has not been revoked or modified by the common council, it must be regarded as still in force, .and the money should be disposed o'f by the defendant under its directions.

Having reached this conclusion, it is unnecessary to determine whether or not proceeding by mandamus was the proper remedy for the relators.

The order denying the peremptory writ of mandamus and quashing the alternative writ must be affirmed, with 'fifty dollars ■costs and disbursements.

Putnam and Herrick, JJ., concur.  